ISG Construction Ltd v English Architectural Glazing Ltd [2019] EWHC 3482 (TCC)

Steven Walker QC acted for the defendant in Part 8 proceedings in which the claimant was dissatisfied with the outcome of an adjudication and sought the final determination by the court of: (a) certain discrete substantive issues decided by the adjudicator; and/or (b) the ambit and effect of the adjudicator’s decision. The claimant and the defendant entered into a subcontract for the design, supply and installation of cladding on a project in Lombard Street, London EC3, where the claimant was the main contractor and the defendant its cladding subcontractor.

The case highlighted the difficulties of using Part 8 claims to clarify or undo adverse adjudication decisions and His Honour Judge Stephen Davies declined to make declarations in either party’s favour, and commented that: “in my view it would not be proper for me to proceed on the basis that it is always in the best interests of the parties to engage in a diet of serial adjudications, supplemented as required by a series of applications to the TCC seeking enforcement or Part 8 declaratory relief. In appropriate cases the parties’ interests might be better served by persuading the TCC to exercise its case and cost management powers to enable their disputes to be finally determined in an expeditious and cost-effective manner.”

In the judgment His Honour Judge Stephen Davies said that it is not in dispute that the court does have jurisdiction in appropriate cases to grant Part 8 declaratory relief in the context of adjudications where it is appropriate to do so. Whether it will be appropriate to do so will depend on questions such as:

(a) at what stage and for what purpose(s) the Part 8 procedure is being invoked. In particular, attempts to invoke the Part 8 procedure to challenge enforcement of an adjudicator’s decision raise particular challenges, addressed by Coulson J in Hutton Construction v Wilson Properties [2017] EWHC 517 (TCC), but which do not arise here

(b) whether or not the issues in question are capable of being resolved under Part 8. In particular, an important consideration is likely to be whether or not they can be determined without resolving disputed questions of fact.

(c) whether or not resolving the issues in question will serve a useful purpose or otherwise do justice between the parties. There is clearly a difference between cases where it is clear that a particular issue has already arisen which both parties wish, for good reason, the court to resolve to enable them to resolve their ongoing differences, and cases where it is not clear what may happen in the future and where resolving the particular issue may only assist one of the parties in certain circumstances which may or may not happen.

Steven Walker QC (instructed by Mills & Reeve LLP) for the Defendant

To read the full judgment please click here

16 December 2019