Battersea Project Phase 2 Development Company Limited v QFS Scaffolding Limited

A conclusive evidence clause suspends the evidential effect of a final payment notice where adjudication proceedings are commenced within the contractual period. The suspension continues until the dispute is concluded by a decision, award, judgment or settlement. An adjudication that becomes a nullity through procedural failure has not reached that conclusion. A later adjudication concerning the same dispute may provide the relevant conclusion, even following a fresh notice. The saving provision falls away if proceedings are objectively abandoned, assessed by words and conduct. Failure to pursue the original adjudication does not itself establish abandonment where the underlying dispute continues to be pursued.

The judgment concerned combined Part 8 and Part 7 proceedings arising from a scaffolding sub-contract. Battersea sought a declaration that a Final Payment Notice was conclusive under clause 1.8.1. QFS sought summary judgment enforcing the monetary consequence of an adjudicator’s later true-value decision.

QFS had issued an adjudication notice within the period specified by clause 1.8.2, but the referral was not served within the agreed extended period and the adjudication became a nullity. QFS later issued a materially identical notice and obtained a decision on the same dispute. The issues were whether the first adjudication had been concluded or abandoned and what effect the later decision had on the Final Payment Notice.

1. The parties had agreed a binding variation to the adjudication timetable. The referral was required by 13 January 2023, subject to a later date only if an unforeseen or unforeseeable reason caused the delay. The variation preserved the mandatory nature of the referral requirement. Failure to comply made the first adjudication a nullity.
2. Clause 1.8.2 operated in two phases. Once relevant proceedings were commenced, the Final Payment Notice lacked its conclusive effects in relation to the subject matter of those proceedings pending their conclusion. On conclusion, the notice became subject to the terms of any decision, award, judgment or settlement. “Conclusion” did not include the ending of an adjudication that had become a nullity.
3. “Such proceedings” was broad enough to include later adjudication proceedings concerning the same dispute. The eventual decision need not arise from the identical notice or involve the same adjudicator, provided it responded to the subject matter raised in time.
4. Abandonment was assessed objectively by words and conduct. QFS had not abandoned the underlying dispute. Its continuing settlement discussions and later identical notice manifested an intention to pursue adjudication.
5. The Part 8 declaration was refused. The Final Payment Notice was subject to the adjudicator’s decision of 29 September 2023. Summary judgment was entered for £3,177,462.85 plus VAT. Summary judgment for contractual interest was refused because no sufficient basis established that interest was incontrovertibly due on the claimed dates. Consequential submissions were permitted concerning discretionary interest under section 35A of the Senior Courts Act 1981.