HT-2024-000423 - [2025] EWHC 1134 (TCC)

That the Claimant had entered into a settlement agreement with a third party assignee of any debts alleged to be owed to the Defendant under the contract between the Parties;

In any event, following receipt of responsive evidence filed by the Defendant on 9 January 2025, it was apparent that there was potentially a single dispute of fact between the parties in relation to the date on which the Defendant commenced the demolition works which could have a significant impact upon these proceedings including whether they could continue “in the Part 8 process”.

There is no need for a stay here. Despite the matters raised by Mr Smith’s witness statement dated 28 January 2025 (and it is noted that he has provided no evidence of the Claimant’s payments to the alleged assignee, whereas Mr Fincham has offered disclosure of his bank statements) the core question remains that of contract formation on the basis of the documents referred to by the Adjudicator.

Nor does the question of the actual start date appear to affect that core question.

In a situation where the Defendant presently has an enforceable judgment against the Claimant made by DJ Baldwin on 9 December 2024, and where the Claimant now seeks to demonstrate that the Adjudicator’s decision is wrong, albeit that there is no stay of DJ Baldwin’s judgment, it is essential that these matters are determined as soon as possible. As it happens, because of when the Court is able to accommodate this matter, the Claimant will have a month since it made its application for a stay to file any further evidence.

If, despite all the above, the judge at the hearing takes the view that the matters cannot be resolved by the Part 8 Claim and a Part 7 claim is more appropriate, he can order to that effect at that time.

The Defendant was successful on the Stay Application, which was refused by Waksman J. The Claimant has not identified any grounds as to why the costs of the Stay Application should be subject to no order for costs.

Where the Defendant has succeeded in the overall proceedings, the presumption should be that these are treated as costs in the case, with the Claimant ordered to pay the Defendant’s costs.

If the Stay Application is still considered separately, it is clear that the Claimant should still be ordered to pay the Defendant’s costs of it, and do so on an indemnity basis.

The Defendant was successful on the Stay Application. The Claimant’s request for an open ended stay of at least 3 months was refused; see the order including reasons at [MB/985-6].

Turning to the factors in CPR 44.2(2)(b):

After the first round of witness evidence was exchanged in the part 8 proceedings, the Claimant applied to stay the proceedings [962], on two grounds. First, that the debt arising from the enforcement of the adjudicator’s decision had been assigned from the Defendant to a third party and that the Defendant had reached a full and final settlement with (and had paid) that third party. Secondly, that there appeared to be a potentially significant dispute of fact (and that the Parties ought to be given time to ascertain whether this could be resolved so as to ensure that the claim could be heard on a Part 8 basis). This was explained in Mr Smith’s evidence for the application [898], which exhibited supporting evidence for the assignment and settlement. By an Order on 5 February 2025, Waxman J refused the stay application but reserved the costs of and incidental to his directions (including the costs of the stay application) [985].

There was indeed a potentially material factual dispute at that point (regarding the start date of the works). Insofar as the stay application temporarily delayed the listing of the Part 8 claim, the impact was salutary because the Parties were ultimately able to use that time to agree a Statement of Facts.

Whether the debt was assigned as alleged is a live issue between these Parties in parallel proceedings. On 22 April 2025 and before District Judge Baldwin in the TCC (HT-2024-LIV-000020), there was a hearing of the Defendant’s application to finalise a third-party debt order in respect of the sums due under the 11 December 2024 enforcement order. The alleged assignment arose at the hearing and the Judge ordered that the Claimant and Defendant must serve evidence on this issue. A hearing with cross-examination is to be listed for the first date 6 weeks after the filing of evidence (which is to be completed within 28 days from 22 April). It is therefore submitted that the assignment is a very real issue between the Parties and one that another TCC Judge has determined requires to be fully ventilated in witness evidence and cross examination. It may therefore be expected that this will be resolved by a judgment several months from now.

For those reasons, it is submitted that the proper order is that costs of the application should be reserved pending the outcome of the hearing to determine whether the debt was assigned. There is no real prejudice in that delay (and none that could not be compensated by interest on the costs). In the alternative, there should be no order as to the costs in respect of the Order of Waxman J and the stay application (on the basis that it would not be fair and proper to resolve those costs absent a determination of the underlying merits of the assignment allegations).