Lidl Great Britain Limited v Closed Circuit Cooling Limited t/a 3CL
[2023] EWHC 2243 (TCC)
Battersea Project Phase 2 Development Company Limited v QFS Scaffolding Limited
15 March 2024
[2024] EWHC 591 (TCC)
High Court
Two companies had a big argument about how much money was owed. They went to an adjudicator (a type of judge for construction disputes), but one company missed a deadline. Although the first attempt failed, the judge ruled a second attempt was allowed and decided how much was owed. The court agreed with the adjudicator's second decision, deciding that the first missed deadline didn't erase the whole issue. The company that owed money had to pay, but not the interest claimed.
Key Facts
- •Dispute between Battersea Project Phase 2 Development Company Ltd (BPS) and QFS Scaffolding Ltd (QFS) over the final sub-contract sum under a JCT DBSub/A 2011 agreement.
- •Clause 1.8.1 of the sub-contract contained a 'conclusive evidence' provision regarding the Final Payment Notice.
- •QFS commenced adjudication (Adjudication No. 11) before receiving the Final Payment Notice, triggering the saving provision in clause 1.8.2.
- •Dispute arose over whether QFS's failure to serve the Referral within the required timeframe rendered Adjudication No. 11 a nullity and made the Final Payment Notice conclusive.
- •Parties agreed to an extension of time for serving the Referral, but QFS missed the extended deadline.
- •QFS subsequently served a second Notice of Adjudication, and the adjudicator ruled in favor of QFS, leading to these Part 7 and Part 8 proceedings.
Legal Principles
Interpretation of contracts should be objective, considering the contract as a whole and the context.
Wood v Capita Insurance Services [2017] UKSC 24; Sara & Hossein Holdings Ltd v Black Outdoor Retail Ltd [2023] UKSC 2
Conclusive evidence clauses are construed strictly, with a presumption against excluding common law rights unless clearly expressed.
Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd [1974] AC 690; Triple Point Technology Inc v PTT Public Co Ltd [2021] UKSC 29
Adjudication proceedings are commenced by the issue of a notice of adjudication.
Mr Tracy Bennett v FMK Construction Ltd [2005] EWHC 1268 (TCC); University of Brighton v Dovehouse Interiors Ltd [2014] EWHC 940 (TCC)
The 'conclusion' of adjudication proceedings, within the context of a saving provision, typically refers to a decision, award, judgment, or settlement.
Analysis of Bennett, Dovehouse, and Marc Gilbard cases
Abandonment of adjudication proceedings occurs when a party abuses the commencement of proceedings by lacking genuine intention to resolve the dispute.
Bennett, Dovehouse
Outcomes
The Part 8 claim for declaratory relief that the Final Payment Notice was conclusive was dismissed.
The adjudication proceedings were not concluded by becoming a nullity; rather, they were concluded by the adjudicator's decision in September 2023. QFS did not abandon the proceedings.
Summary judgment was granted in the Part 7 proceedings for £3,177,462.85 plus VAT.
This amount reflects the monetary consequence of the adjudicator’s decision, as there was no other defence to the Part 7 claim.
The claim for summary judgment in respect of contractual interest was dismissed.
Insufficient evidence was provided to determine the final date for payment, therefore no basis to award interest.
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