finally sought payment of the sum of £1,039,438.14, being the amount brought out
by the Final Account Statement.
Issue (a) – was the final account statement validly issued? The short answer was that it met the two requirements of the subcontract. It was issued in time and
stated the amount AMK considered to be due on the basis that the final account
statement was a payment notice and subject to the provisions of section 110A of
the Act. It met those provisions and was, therefore, validly issued.
Issue (b) - was the final account final and binding on BW and therefore, on Mr
Bingham? It was noted that the clause in question was in a bespoke subcontract,
not a standard form which meant that analysis of conclusivity in the context of standard forms did not assist. Second, it was only binding on BW and not on AMK – indeed, AMK had sought a different sum in the Bingham adjudication than had
been claimed under the final account statement. The clause said nothing about
being evidentially conclusive. The only requirement was that either adjudication or
court proceedings were issued within 20 days. BW had done both. Upon the first
being done (the commencement of the Entwistle adjudication), the final account
statement lost the capacity to become final and binding on BW. That was the
natural construction of the clause. As to whether one set of proceedings could be
considered to be a continuation of another (i.e., the Bingham adjudication
considered to be a continuation of the Entwistle adjudication), there was no clear
answer, and it was unnecessary to decide the point.
The final matter was whether the court should address the claim for payment by
AMK. To grant the declaration for payment would be to undermine the award in
favour of BW. While the claim was not incompetent, in that the court ought to
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