HT-2023-000415 - [2024] EWHC 1199 (TCC)

First, I consider that if these two commercial parties, acting with the benefit of legal advice, had intended to settle all potentially related future claims, they would have said so. In particular, they would most likely have used wording which achieved that objective by referring to all claims arising from or in connection with one or all of “the contract”, “the works” or “the dispute(s)”; they would not have referred to claims arising from or in connection “these proceedings”. (It is notable that Dawnvale’s solicitor’s letter of 12^th October 2023, which responded to the new claim, did not refer to the wording of the Order but instead said that the Order had resolved “any and all claims arising from the dispute between the parties.”)

Second, if paragraph 4 was intended to settle all potentially related future claims, I consider that it would have expressly bound both parties. It was an oddity of Dawnvale’s position at the hearing that it was required to argue that its own future claims were barred even though paragraph 4 referred only to the Claimant. I consider it unarguable that the paragraph was intended to bind both parties. If that is what the parties had intended, they would have said “the parties” or identified both the Claimant and Defendant.

Third, Mr East submitted and I accept that the purpose of paragraph 4 was to prevent Hylgar “coming back for more”; in other words re-arguing the true valuation of Dawnvale’s works by way of a final determination in court proceedings. I agree that this makes sense of the paragraph.

Fourth, I consider that, as a matter of language, the new claim does not “arise from” the enforcement proceedings. There is no causative relationship with the proceedings. It could be said to arise from the contract or the works or the dispute between the parties, but not - as a matter of language - from the enforcement proceedings. Likewise, I consider that, as a matter of language, the new claim is not “connected with” the proceedings. It strikes me as a very odd use of language to describe the new claim as “connected with” the enforcement proceedings save in the most indirect manner.

Fifth, in reaching these conclusions on construction, I do not consider that it is necessary to identify different claims or heads of loss that could fall into each of the categories of “arising out of” and “in connection with”. That could be regarded as untidy, but that is sometimes the result when parties have not thought carefully about what they intend their wording to achieve. But, in any event, to the extent that it is necessary to do so, I would hold that a claim for legal costs would be an example of a claim “arising out of” the enforcement proceedings, whereas a claim by Hylgar for a final determination of the true value of Dawnvale’s works would not arise out of the enforcement proceedings, but it would be a claim “connected with” them because it would cover precisely the same subject matter.