In Part 8 proceedings the Claimant, Battersea Project Phase 2 Development Company Limited (“BPS”) sought declaratory relief that the Final Payment Notice was conclusive. In Part 7 proceedings the Claimant, QFS Scaffolding Ltd, ("QFS") sought summary judgment in respect of the monetary consequence of the adjudicator's decision on the true value of the Final Sub-Contract Sum, namely £3,177,462.85 excluding VAT. The case raises a topic on the interplay between a "conclusive evidence" provision and adjudication proceedings issued for the purposes of preventing the "conclusive evidence" provision from taking effect.

The form of subcontract was the JCT Standard Design & Build Subcontract Agreement 2011, subject to bespoke amendments. Practical completion occurred on 21 October 2022. Following this BPS provided a statement of the Final Sub-Contract Sum. On 21 November 2022, QFS gave notice that it disputed the content of that statement in its entirety. QFS then commenced three adjudications, Nos. 8, 9 and 10, respectively, on 25 November, 15 and 16 December 2022. On 19 December 2022, QFS issued another notice of intention to refer a further dispute to adjudication (“Notice”), Adjudication No. 11. The dispute referred was “the calculation of the Final Sub-Contract Sum i.e., the true value of the Final Sub-Contract Sum". QFS calculated the Final Sub-Contract Sum to be £71,587,425 plus VAT. Whereas, BPS’s calculation of the Final Sub-Contract Sum was £30,607,869 plus VAT. 

BPS contended that QFS failed to serve a Referral within the time required, by 13 January 2023. Therefore, BPS argued that QFS were in breach of its obligation to serve the Referral on that date and QFS did not provide an explanation as to why there was a delay. BPS gave notice to QFS that it required service of the Referral within a reasonable time. On this basis, BPS contends that the Notice was bound to fail because QFS had not served its Referral by the agreed date. 

QFS contended that the parties had agreed that the time for service of the Referral would be generally extended so there was no failure as alleged. QFS also argued that the adjudicator was not bound by the conclusive evidence clause. It rejected the argument that it ever abandoned its prosecution of the proceedings. On its construction of clause 1.8.2, the Final Payment Notice was to be adjusted by the adjudicator's determination of the true value of the Final Sub-Contract Sum.

Judge Alexander Nissen KC dismissed the declaration sought in the Part 8 proceedings and gave judgment summarily enforcing the agreed monetary consequence of the adjudicator’s decision in the Part 7 proceedings for £3,177,462.85 excluding VAT. He decided that on a proper construction of clause 1.8.2, "conclusion" means either a decision, award or judgment or a settlement. Therefore, a "conclusion" does not include the ending of an adjudication which has become a nullity. On abandonment he decided that QFS did not abandon adjudication proceedings in respect of the subject matter of its Notice.