HT-2023-000338 - [2024] EWHC 992 (TCC)

DISCUSSION

The claim is pleaded on the flawed assumption that the court will review or hear an appeal from the adjudicator’s decision. That is not the function of the court; rather it must finally determine the parties’ rights for itself. Subject to narrowly defined exceptions, the TCC routinely enforces adjudication decisions as temporarily binding upon the parties pending such final determination of their rights. This is not, however, an enforcement claim.

The proper construction of a written contract where there is no dispute as to its terms is a paradigm example of a case that might be suitable for the Part 8 procedure. Before the court can construe a contract, it does, however, need to establish that there was a binding agreement and then identify the terms of such contract.

In this case, the parties are in dispute as to whether there was any contractual variation at all. Further, the alleged variation is said to have been evidenced by, rather than being contained in, writing. Accordingly, issues as to the existence of and terms of any contractual variation must be determined by witness evidence.

While TClarke does not accept that the contract was varied, it seeks a declaration as to the true effect of the alleged variation on the basis of Bell’s own case. A declaration contrary to TClarke’s pleaded case would not, however, necessarily be the end of the matter since it might thereafter seek to argue that there was no such variation or alternatively that the terms of any such variation were not as alleged by Bell.

Furthermore, Bell’s estoppel argument will necessarily depend upon evidence both as to the conduct alleged and any detrimental reliance upon such conduct that is said to give rise to the estoppel.

In my judgment, the proposed use of the Part 8 procedure in this case is laden with risk that the court might reach ill-formulated and ill-informed decisions that will not finally dispose of the disputes between the parties. Further, I am not satisfied that TClarke has identified one or more precise legal questions that can be properly tried upon clearly identified agreed facts and which will be determinative of the current dispute between the parties.

Accordingly, I conclude that the use of the Part 8 procedure was plainly inappropriate and that this case must proceed under Part 7.