[2025] EWHC 404 (TCC)

The enrichment was at the expense of HSMC which provided the project management services;

On 4^th February 2025, Mr Bunting made a further witness statement in which he stated that:

“23.3

In or around September 2015, D1 raised the issue of Forbes House with Mr McKillen, and asked him to manage the redevelopment of the property. Mr McKillen agreed to do so, and by virtue of this meeting and oral exchange, and/or Mr McKillen’s performance of services, a contractual relationship arose between the Claimant and D1 and/or D3.

23.4

D2 was incorporated, it is inferred, at D1’s behest in May 2016 to be an SPV for the Forbes House redevelopment. D2 was the corporate entity who subsequently contracted with the various contractors and professionals who worked on the project. The Claimant contends that by virtue of Mr McKillen’s exchanges with D2 and/or his performance of services, a contractual relationship arose between the Claimant and D2.”

HSMC have not served Particulars of Claim. However, I am prepared to assume in their favour that I should take account of all the material served on their behalf, including material served quite some time after the application to Pepperall, J.

Even so, I have concluded that HSMC have failed, despite their several attempts summarised above, to show that there is a serious issue to be tried on the merits of the claim, i.e. that there is a real, as opposed to a fanciful, prospect of success on the claim. My reasons for so concluding are as follows.

Firstly, despite many attempts and sophisticated legal representation, HSMC have come nowhere near satisfying the requirements of PD 16 set out above for the pleading of an oral contract or a contract made by conduct. HSMC have done little more than assert that there is a contractual claim.

Secondly, the case is incoherent in that the way the matter is put appears to change with every iteration and without explanation. That does not inspire confidence in the strength of the claim.

Thirdly, HSMC have not really sought to engage with, let alone satisfy the court, that there is a serious issue to be tried to the effect that a contract was entered into between HSMC and one or more of these defendants.

Fourthly, the various formulations of the case really amount to little more than assertions of the result for which HSMC contend, without much in the way of explanation as to how such result is arrived at.

Mr Fenn, on behalf of HSMC, seeks to counter these criticisms by pointing to the passages in the letter of claim, set out above, to the effect that HSMC and Mr McKillen are effectively one and the same thing. However, that does not meet the point that HSMC have not set out a case with real prospects of success that, on this occasion, one of more of the defendants contracted with HSMC as a corporate entity rather than with Mr McKillen personally.

Mr Fenn also notes that, in the construction industry, it is commonplace for substantial works to be carried out on the basis of very vague contractual arrangements. This is true, but this does not mean that a claimant is thereby relieved of the obligation to satisfy the requirements of PD 16 as to the contractual basis of any claim.

In respect of the restitutionary claim, I again do not think that HSMC have shown that they have real prospects of success in showing that:

As to ingredients (ii) and (iii) it may be that some person has incurred expense in connection with these works and/or that there was some relevant joint understanding between such person and one or more of these defendants. But what has not been set out with any coherence or conviction is that it was HSMC which incurred such expense or had such understanding.