Wallace Estates Limited v Durkan Estates Limited & Anor

Where related proceedings in the Technology and Construction Court and the First-tier Tribunal raise common facts or issues, they may be jointly managed and heard together under their respective procedural powers and overriding objectives. Relevant considerations include overlap, the risk of inconsistent findings, costs and delay, the stage reached, and whether the same benefit can be achieved by another order. Hearing together is generally preferable to formal consolidation because each proceeding retains its identity, parties, procedural rules and judgment. A joint-management order does not determine an unresolved jurisdictional issue that has not been fully argued. The courts may coordinate disclosure, witness and expert evidence, grant permission for cross-use, and preserve separate costs regimes.

Wallace Estates Limited and Durkan Estates Limited were parties to a Remediation Agreement concerning relevant defects at Centrillion Point. Wallace brought proceedings in the First-tier Tribunal for a remediation contribution order under the Building Safety Act 2022. Durkan brought proceedings in the Technology and Construction Court concerning Wallace’s purported termination of the Agreement, seeking declarations and damages. Durkan Holdings Limited was a party only to the Tribunal proceedings.

The joint hearing concerned applications by both sides for joint case management and the first TCC case-management conference. The parties agreed that substantial factual and issue overlap justified a single hearing. The court and Tribunal considered how their differing powers and procedural rules should be coordinated while preserving the separate proceedings and avoiding inconsistent findings and duplicated evidence.

Disposition. The Technology and Construction Court and the First-tier Tribunal endorsed the parties’ agreed approach. The FTT proceedings and TCC proceedings were ordered to be jointly managed and tried together. Findings of fact at the joint trial were to be binding in both proceedings and against all three parties. The existing FTT pre-trial review and hearing were vacated, with primary and conditional trial listings fixed.

1. Under the Civil Procedure Rules, the TCC’s case-management powers include consolidating proceedings, trying claims on the same occasion and deciding the order in which issues are tried. The FTT has a closely analogous power under rule 6(3)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. Both powers are exercised in accordance with the applicable overriding objective.
2. The relevant considerations include overlap between parties, facts or issues; the risk of inconsistent findings; costs and delay avoided; the stage reached; and whether the same advantages can be achieved by another procedural means. Where the criteria are met, hearing proceedings together is generally preferable to formal consolidation because each proceeding retains its separate identity, parties, procedural rules and judgment. The substantial overlap here justified the order.
3. The order did not determine whether the FTT had jurisdiction to decide the lawfulness of the purported contractual termination in the context of the remediation contribution order proceedings. The court expressly left that issue open because it was not in dispute for the present application and had not been fully argued.
4. Under the Tribunals, Courts and Enforcement Act 2007, a puisne High Court judge is already a judge of the FTT and Upper Tribunal, so no separate appointment is required. The concurrence of the FTT President is required for the joint arrangement. The trial and pre-trial review would be conducted by a TCC Judge and a separate FTT Judge, while a single suitably qualified judge could conduct pre-trial case management.
5. The order provided for coordinated disclosure, one set of witness statements and one set of expert evidence, applying the more prescriptive CPR requirements where they were not inconsistent with the FTT Rules. Permission was granted for cross-use of documents, witness statements and expert reports. Costs budgeting was dispensed with because the claim value was at least £10 million, and separate cost codes were required for FTT-only, TCC-only and joint work.