Berkeley Homes (South East London) Limited & Anor v John Sisk and Son Limited

A Part 8 claim is appropriate for a discrete question unlikely to involve a substantial dispute of fact, especially a contractual construction issue capable of resolution within the contract’s four corners. Where construction depends materially on disputed facts forming part of the factual matrix, or on factual issues such as reliance, the court should not determine the claim summarily. The parties should plead their cases properly, agree the relevant facts or seek directions for resolving disputes. The court may order the claim to continue under CPR 7 under CPR 8.1(4), exercising that case-management power in accordance with the overriding objective.

The claimant employers sought declarations concerning the allocation of design responsibility under a building contract with the defendant contractor. The dispute concerned whether the contractor had adopted the whole tender design, whether responsibility arose only after completion of RIBA Stage 4, and whether the Employer’s Requirements gave rise to representations or warranties. The parties’ positions on the development of the design, the preparation of the Employer’s Requirements, the contractor’s opportunity to assess the design and reliance on earlier drafts were materially disputed. The central issue was whether the claim was suitable for determination under Part 8.

1. Part 8 objection upheld. The court declined to make the declarations sought because the claim was unsuitable for determination under Part 8.
2. Under CPR 8.1(2), Part 8 is available where the claimant seeks the court’s decision on a question unlikely to involve a substantial dispute of fact. The power under CPR 8.1(4) is a case-management power to be exercised in accordance with the overriding objective.
3. The contractual construction dispute depended on the circumstances in which the design and Employer’s Requirements were developed during the PCSA period. Those circumstances were sharply disputed and went directly to the factual matrix relevant to construction. The dispute was not a short or narrow issue capable of determination from the documents alone. Additional evidence and potentially disclosure might be required.
4. The contractor’s case that the Employer’s Requirements constituted representations also raised reliance, which was fundamentally factual and unsupported by sufficient evidence on the present materials.
5. The judge adopted the construction principles summarised in EE Limited v Mundio Mobile Limited ([2016] EWHC 531 (TCC)). Contractual meaning is assessed as a unitary exercise by reference to what a reasonable person with the relevant background would understand the language to mean. The court considers the natural and ordinary meaning, other contractual provisions, contractual purpose, relevant background and commercial common sense, while disregarding subjective intention. The contract should be read as a whole so far as possible to avoid inconsistency.
6. The parties should have co-operated, once the factual dispute became apparent, to agree the facts or agree a process for resolving them. Failing agreement, directions should have been sought. The parties were invited to agree an order and directions for continuation, potentially under Part 7, or lodge short written submissions on consequential matters.