PBS Energo A.S. v Bester Generacion UK Ltd [2019] EWHC 996 (TCC)

Steven Walker QC successfully acted for the defendant in seeking the dismissal of an application for summary judgment to enforce an adjudicator’s decision in the face of the defendant’s case that the decision was procured by fraud.

The case relates to a contract Bester Generacion UK Limited entered into with Equitix ESI CHP Wrexham Limited to design and build a biomass-fired energy-generating plant in Wrexham. In May 2016, Bester entered into a sub-contract with PBS for the engineering, procurement, construction and commissioning of the plant. The sub-contract price was £14 million (plus VAT).  In adjudication it was decided that PBS was entitled to terminate the contract in 2017. When Bester did not pay, PBS commenced further proceedings in the TCC to enforce the original adjudication and received a judgment in its favour in April 2018. Bester paid the judgment sum and the adjudicator’s fees in July 2018.

As the original adjudication dealt with questions of liability and the repayment of the payment security, in November 2018, PBS served notice of adjudication seeking the valuation and payment of its claims under clauses 15.8 and 16.4 of its contract with Bester. Bester was ordered to pay the sum of £1,701,287.22 plus interest of £81,801.62 by 14 December 2018. Upon Bester’s failure to pay, PBS issued this third set of proceedings in December 2018.

Mr Justice Pepperall dismissed PBS’s application for summary judgment.

Steven Walker QC and Tom Owen (instructed by Watson Farley & Williams LLP) for the Defendant.

17 April 2019