Bell Building Limited v TClarke Contracting Limited
[2024] EWHC 1929 (TCC)
TClarke Contracting Ltd v Bell Build Ltd
29 April 2024
[2024] EWHC 992 (TCC)
High Court
Two construction companies disagreed about a payment and an adjudicator's ruling. One company tried to use a quick court process (Part 8), but the judge said that wasn't right because there were too many disputed facts. The case will now go through a more thorough process (Part 7).
Key Facts
- •TClarke Contracting Ltd (Claimant) sought declaratory relief against Bell Build Ltd (Defendant) regarding a Pay Less notice and an adjudicator's decision.
- •The dispute concerned works for a data centre construction, with a subcontract incorporating 2016 JCT Design & Build Subcontract Conditions.
- •A dispute arose over a purported contractual variation in March 2023 and the validity of the Pay Less notice issued by TClarke.
- •The adjudicator found in favour of Bell, awarding £2,129,672.69 plus VAT.
- •TClarke initiated a Part 8 claim, seeking a declaration that the Pay Less notice was valid and the adjudicator's decision was wrong.
- •Bell objected to the Part 8 procedure, arguing a substantial dispute of fact existed.
Legal Principles
Part 8 procedure is appropriate only where a question is unlikely to involve a substantial dispute of fact.
Civil Procedure Rules 1998, Rule 8.1(2)
Part 8 claims are typically used when there is no substantial dispute of fact, such as disputes over contract construction or statutory interpretation where primary facts are undisputed.
TCC Guide, Paragraph 3.3.2
The court has the power to order a Part 8 claim to proceed under Part 7 if deemed inappropriate.
CPR r.8.1(4)
In Part 8 claims, the question for the court must be framed with precision and be capable of a precise answer; there is a risk of inappropriate use leading to ill-informed decisions.
Merit Holdings Ltd v. Michael J. Lonsdale Ltd [2017] EWHC 2450 (TCC)
Outcomes
The court ruled that the Part 8 procedure was inappropriate.
The case involved substantial disputes of fact regarding the existence and terms of a contractual variation, requiring witness evidence. The court also noted that the claim was based on the flawed assumption of reviewing the adjudicator's decision, rather than independently determining the parties' rights.
The claim was directed to proceed under Part 7.
The court found that the Part 8 procedure risked ill-informed decisions and that TClarke had not identified precise legal questions for trial on agreed facts that would be determinative of the dispute.
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