Connect Plus (M25) Ltd v Highways England Company Ltd

Contractual dispute-resolution provisions are ordinarily enforceable, and court proceedings brought in breach of them will usually be stayed. A party is not, however, barred from advancing genuinely new arguments merely because they were not raised in an earlier expert determination. The court should identify whether the later issues are matters comprised in the original dispute. A useful fallback is whether they are the same or substantially the same dispute. Different contractual provisions, later-disclosed documents, later events and a different emphasis may support the same underlying dispute. Even if a breach is established, a stay may be refused where the issues are interwoven, division would be artificial, and a further reference would cause delay, expense and procedural confusion.

Connect Plus challenged an expert determination concerning the interpretation and application of the Critical Incident Adjustment under a long-term DBFO contract for the M25. Highways England applied to strike out the part of the claim alleging agreement, convention, waiver or estoppel, contending that those matters had not been referred to the expert and that Connect Plus had waived any right to raise them.

Alternatively, Highways England sought a stay so that the alleged new matters could first pass through the contractual Network Board and expert-determination procedure. The central issues were whether the matters were comprised in the dispute referred to the expert and, if not, whether the court should stay them.

1. Strike-out. The application was refused. If the matters were genuinely new, the contractual dispute-resolution procedure would apply to them prospectively. They were not thereby waived for all time. Nor did the challenge suggest that the expert lacked jurisdiction or that Connect Plus was resiling from its agreement to confer jurisdiction.
2. Scope of the original dispute. The dispute before the expert concerned both the interpretation of the contractual definition of a Critical Incident and its application in practice. The later claim addressed the same underlying controversy: whether Critical Incidents were governed by the deemed list or by NILO’s discretion. Reliance on different contractual provisions, additional documents, later events and the alleged March 2013 agreement did not change that underlying dispute.
3. The matters were therefore matters comprised in the dispute under clause 8.3 of Schedule 19. Alternatively, they were the same or substantially the same as the matters determined by the expert. The latter test was a useful cross-check, informed by the common-law concern to prevent successive litigation over the same matter.
4. Stay. No stay was required because there was no breach of the agreed procedure. Even if there had been a breach, the discretion would have been exercised against a stay. The issues were too interwoven for sensible division, the dispute was evolving, and a further reference would create delay, expense, jurisdictional disputes and the prospect of conflicting expert decisions. The overriding objective favoured resolving the dispute in the existing proceedings.