The facts

Under a contract dated May 2016 Bester engaged PBS to engineer, procure, construct and commission a biomass power plant in Wrexham. Disputes occurred and in June 2017 PBS gave notice of termination and claimed £7,711,818.71 in damages. Bester first sought to affirm the contract but then gave notice of termination on 7 August 2017 and counter-claimed £7,467,660.29. In November 2017 PBS commenced court proceedings and the trial was subsequently fixed for July 2019. 

During November 2018 PBS commenced an adjudication claiming damages in consequence of termination. Bester contended that PBS was required to give credit for the value of equipment that had not been delivered under the contract and which PBS had retained. The adjudicator decided no credit should be given, relying upon evidence from the chief executive of PBS to the effect that several items of equipment manufactured for the plant remained in storage in the Czech Republic. The adjudicator determined that this equipment would be available to Bester once it had paid over the relevant portion of the contract price. He therefore ordered Bester to pay the sum of £1,701,287.22 without any credit being applied. Bester did not pay, so on 19 December 2018 PBS commenced enforcement proceedings.  

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