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

THE LAW

Rule 8.1(2) of the Civil Procedure Rules 1998 provides:

“A claimant may, unless any enactment, rule or practice direction states otherwise, use the Part 8 procedure where they seek the court’s decision on a question which is unlikely to involve a substantial dispute of fact.”

Paragraph 3.3.2 of the TCC Guide adds:

“A Part 8 claim form will normally be used where there is no substantial dispute of fact, such as the situation where the dispute turns on the construction of the contract or the interpretation of statute. Claims challenging the jurisdiction of an adjudicator or the validity of his decision are sometimes brought under Part 8, where the relevant primary facts are not in dispute. Part 8 claims will generally be disposed of on written evidence and oral submissions.”

The court has an express power under r.8.1(4) to order any Part 8 claim to continue as if the claimant had not used such procedure.

The principles were usefully summarised by Jefford J in Merit Holdings Ltd v. Michael J. Lonsdale Ltd [2017] EWHC 2450 (TCC), [2018] B.L.R. 14 and by Neil Moody KC, sitting as a Deputy Judge, in Berkeley Homes (South East London) Ltd v. John Sisk & Son Ltd [2023] EWHC 2152 (TCC). In Merit Holdings, Jefford J said at [21]-[22]:

It is, therefore, an express requirement of the use of the Part 8 procedure that the question for the Court is one that is unlikely to involve a substantial dispute of fact and it is, it seems to me, to be implied in the rules that the question should be framed with some degree of precision and/or be capable of a precise answer.

The experience of this court shows that there is a real risk of the Part 8 procedure being used too liberally and inappropriately with the risks both of prejudice to one or other of the parties in the presentation of their case and of the court being asked to reach ill-formulated and ill-informed decisions.”