Workman Properties Limited v ADI Building and Refurbishment Limited

Part 8 proceedings are suitable for determining a discrete contractual interpretation issue where the alleged disputed facts are irrelevant to construction of the contract or are not clearly identified as relevant and genuinely disputed. A party resisting Part 8 must identify the particular relevant facts in issue and explain why they affect interpretation.

Under a JCT design and build contract, broad and bespoke obligations making the contractor fully responsible for the design, including existing design in the Employer’s Requirements, are not displaced by statements that significant design has reached RIBA stage 4 or equivalent BSRIA stage 4(i). The contractor must satisfy itself that the existing design is sufficient, including that necessary design work has not been omitted.

The claimant sought declarations concerning responsibility for design under a JCT Design and Build Contract 2016. An adjudicator had previously decided that the design in the Employer’s Requirements had not reached RIBA stage 4 or equivalent stage 4(i) for building services, but that the claimant had warranted that it had.

The defendant challenged the suitability of the Part 8 procedure, relying on disputed factual issues concerning the state of the design, tender discussions and consultant appointments. It also submitted that the contractual interpretation issue should await a full Part 7 trial. The central issues were whether the Part 8 claim should proceed and whether the contract placed responsibility for completing and verifying the stage 4/4(i) design on the defendant.

1. Part 8 suitability. The claim was suitable for Part 8 determination. The defendant had not identified particular facts which were both relevant to contractual interpretation under established principles and genuinely disputed. The court was not required to search through extensive evidence to identify such facts. If a party contends that Part 8 is unsuitable, it should identify the facts, explain their relevance, state whether they are agreed or disputed, and propose how they should be addressed.
2. Facts concerning whether the design had actually reached stage 4/4(i), and whether representations about that status were true, might be relevant to substantive claims for breach, damages or misrepresentation. They were not relevant to the discrete question of contractual interpretation. The subsequent adjudication and payment did not justify deferring determination.
3. Construction of the contract. The contract documents, including the amended JCT provisions and Employer’s Requirements, imposed broad responsibility on the defendant for the whole design. That included design contained in the Employer’s Requirements and an obligation to review and verify its adequacy.
4. The statement that significant design had been developed to stage 4 and services design to stage 4(i) did not amount to a contractual warranty that no further design work or verification was required. Reading it in that way would heavily qualify the express obligations to complete the design and to be fully responsible for it. The defendant was responsible for satisfying itself that the existing design was sufficient in all respects, including that necessary design work had not been omitted.
5. Declarations. The court declined declarations framed in excessively broad terms or extending beyond the issue referred to the adjudicator. It granted limited declarations that the defendant was obliged to complete the design up to RIBA stage 4 and equivalent BSRIA stage 4(i), that the claimant had not warranted completion to those stages, and that relevant design works did not constitute a Change, Relevant Event or Relevant Matter. The estoppel and wider additional-time, cost and loss-and-expense declarations were refused.