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.