Buckinghamshire Council v FCC Buckinghamshire Limited (Judgment Number Two: Strike Out / Summary Judgment on the Merits)

Strike out or summary judgment should not be granted where a claim turns on the construction of a complex contract and the court cannot safely conclude that the claimant has no realistic prospect of success. The court should grasp a short, self-contained construction issue where there is only one real answer. Conversely, where the answer requires detailed analysis and time for reflection, the court should not rush to judgment. A contractual claim for repayment or credit may be arguable where payment applications allegedly overstated sums due under a detailed agreement. The claim’s characterisation as repayment, credit, or another contractual remedy does not itself make it legally impossible.

The defendant applied under Civil Procedure Rules 1998, rule 3.4 and Part 24, to strike out or obtain summary judgment on schedule 4 of the claimant’s amended claim. The restitution claim had been discontinued, leaving a contractual claim.

The claimant alleged that the defendant received income connected with third-party waste haulage, deducted haulage costs without giving the corresponding credit, and thereby overstated payment applications. It sought repayment or credit under the project agreement. The defendant contended that the agreement exhaustively defined available payment adjustments and contained no credible contractual basis for the claim.

The central issue was whether the claim was so fundamentally inconsistent with the agreement that it had no realistic prospect of success at the summary stage.

1. Application dismissed. The claimant’s schedule 4 claim was not struck out and summary judgment was not entered.
2. The applications under CPR 3.4 and Part 24 raised the same essential question: whether the pleaded contractual case was fundamentally inconsistent with the project agreement. The court had to decide whether the claimant’s construction case was plainly untenable at this stage.
3. The project agreement was detailed and complex, and its provisions were not entirely clear. The claimant’s case required analysis of the contractual structure, the haulage arrangements, the payment mechanism, the change procedure and the Amersham deed of variation. Those issues were plainly arguable and could not safely be resolved summarily.
4. The court stated that a robust approach is appropriate where there is a short and self-contained question of construction with only one real answer. The converse applies where the answer can be revealed only by detailed analysis and time for reflection. The court should not rush to judgment in the latter circumstances.
5. If the claimant’s construction was correct, the alleged right to repayment or credit was at least arguably an express contractual right. Clauses 71.16 and 71.17 arguably supported recovery or adjustment even if the relevant deductions or allowances were not expressly identified in the payment mechanism.
6. A contractual claim for repayment or credit was not shown to be legally unknown or fatally defective merely because it was not pleaded as a claim for damages. Where payment applications allegedly claimed sums not due under the contract, the paying party could at least arguably seek repayment or a credit, subject to any proper defence.
7. Final determination of the construction issues was left to the listed eight-day trial. Any lack of clarity in the pleading could be addressed through requests for further information or amendment.

This was a first-instance interlocutory decision. The judgment referred to an earlier trial and judgment on the project agreement, [2024] EWHC 1552 (TCC), and to a subsequent judgment concerning interest, [2024] EWHC 3215 (TCC). No appeal was determined in this judgment.