Parkway Construction Ltd (In Liquidation) v Howard De Walden Estates Ltd

Summary judgment is inappropriate where the claim depends on materially disputed facts requiring investigation at trial. The court must not conduct a mini-trial or forecast the likely outcome from incomplete evidence. Summary judgment may be appropriate where, even assuming the claimant proves its facts, the relief cannot succeed, or where the factual case is plainly fanciful or contradicted by the available material. Declaratory relief should not be granted merely to establish theoretical entitlement: late information may cause no delay, and delay may not produce recoverable loss and expense.

Parkway Construction Ltd, in liquidation, applied for summary judgment and declarations arising from building works carried out for Howard de Walden Estates Ltd under a JCT contract. Parkway alleged entitlement to extensions of time, loss and expense, and relief concerning liquidated damages and the contractual final account. Howard de Walden disputed the factual and legal basis of those claims and advanced substantial cross-claims.

The application was made before a Defence and Counterclaim had been served. The central questions were whether the disputed claims could properly be determined summarily and whether the declarations and contractual orders sought were sufficiently pleaded and justiciable.

1. The application was dismissed. It was misconceived because both Parkway’s claims and Howard de Walden’s cross-claims depended on fundamental, irreconcilable factual disputes, particularly concerning the causes and effect of delay, responsibility for late information, valuation, defects, completion costs and loss of rental income.
2. Under CPR Part 24.2, summary judgment requires consideration of whether the relevant claim or defence has a real prospect of success. The prospect must be real rather than fanciful. The procedure is not intended to determine disputed facts through a mini-trial. The court should not forecast what the trial judge will decide on fuller disclosure, witness evidence and expert reports. The approach in Three Rivers DC v Bank of England (No 2) [2001] UKHL 16 was applied.
3. The alleged admission that a maximum extension of ten weeks might be justified did not establish an entitlement to any extension. Whether the relevant design information was required earlier, and whether its late provision caused delay, required factual determination.
4. The court rejected the submission that termination for insolvency or other default automatically extinguished accrued rights to liquidated or common-law damages. If required to decide the point, the court would have held that accrued rights remained enforceable. The point did not require final determination on the application.
5. Declarations that late information would in principle entitle the contractor to an extension, or that loss and expense would correspondingly be due, were theoretical and inappropriate. The Particulars of Claim were also materially deficient, including in failing clearly to plead the relevant delay events, causation and claimed periods.
6. The application and hearing costs were ordered to be paid by Parkway to Howard de Walden on the indemnity basis. The costs were summarily assessed at £44,000 plus VAT if applicable.

First-instance decision. No appellate history was stated in the judgment.