Forest Heath District Council v ISG Jackson Ltd

Part 8 is appropriate where the claimant seeks the court’s decision on a question unlikely to involve a substantial dispute of fact. A court may determine a limited factual issue through a hybrid procedure, but only where the issue can be resolved fairly and efficiently on a short hearing. A declaration is discretionary. Even where the relevant facts are established, the court should consider justice to both parties, whether the declaration serves a useful purpose, and whether special reasons favour or oppose relief. The court should decline a declaration that would open wider questions of causation, delay or liability, leave the underlying dispute unresolved, or produce an uncertain practical effect.

The claimant sought a declaration in Forest Heath District Council v ISG Jackson Ltd concerning an adjudicator’s finding that late finalisation of steelwork design caused a change from pre-finished to site-painted steelwork. The declaration was sought in Part 8 proceedings after the adjudicator had awarded an extension of time connected with birdcage-scaffold delays.

The defendant contended that the issue involved substantial factual disputes and that the declaration would not finally determine the parties’ entitlement to an extension of time. The central questions were whether Part 8 was procedurally appropriate and whether the court should exercise its discretion to grant the declaration.

1. Part 8 procedure. Under CPR rule 8.1(2)(a), Part 8 may be used where the claimant seeks the court’s decision on a question unlikely to involve a substantial dispute of fact. Substantial factual disputes require the procedure applicable to Part 7 proceedings.
2. The issue was not confined to an agreed or readily ascertainable fact. There were disputes about what steelwork design information was late, when it was produced, and when, how and why the decision to paint the steelwork on site was made. The existing evidence had not been tested by cross-examination, and proper determination would require fuller pleadings and disclosure. The issue was therefore unsuitable for a short hybrid Part 8 hearing.
3. Discretion to grant a declaration. Following the principles stated in Financial Services Authority v Rourke [2002] CP Rep 14 and Nokia Corporation v Interdigital Technology Corporation [2006] EWHC 802 (Pat), the court’s power to grant a declaration is discretionary. The court must consider justice to the claimant and defendant, whether the declaration would serve a useful purpose, and whether the issue is sufficiently defined and justiciable.
4. The proposed declaration would not finally determine the adjudication dispute or the appropriate extension of time. It would leave unresolved the actual cause of the change to site painting, the effect of other uses of the scaffold, concurrent delay, and other alleged delay events. Its practical effect on the parties’ rights would therefore be uncertain.
5. The court also considered the approach to limited factual issues described in Vitpol Building Service v Michael Samen [2008] EWHC 2283 (TCC), but concluded that this case required wider factual investigation and disclosure. No declaration was made.