Breakshore Ltd v Red Key Concepts Ltd [2022] 5 WLUK 677

In Breakshore Ltd v Red Key Concepts Ltd [2022] 5 WLUK 677, Max Twivy acted for the successful claimant in resisting a Pt 8 claim challenging the correctness of an adjudication decision. The Pt 8 claim related to which party bore contractual responsibility for a breach of planning permission, and whether such a breach was an act of prevention which entitled the contractor to suspend its works.

The adjudication decision had awarded liquidated damages to the employer. The judgment considered the principles set out in Hutton v Wilson [2017] EWHC 517 (TCC) relating to Part 8 challenges to the enforcement of adjudication decisions. It was held that the issues of (a) whether it was reasonable for the contractor to suspend its works and (b) causation (whether the planning permission issue was in fact a cause of delay), were questions of fact which were not suitable for Part 8 proceedings. It was also held that declarations pursued in the Part 8 claim could not readily be separated from other declarations which the parties had agreed would be dealt with in Part 7 proceedings.

Costs were awarded on the indemnity basis, having regard to the adjudication enforcement regime and the inappropriate use of the Part 8 procedure.

Max Twivy (instructed by K&L Gates LLP) for the Claimant.

Paul Darling QC and David Hopkins (instructed by Shemmings Hathaway LLP) for the Defendant.