Douglas Homes Housing Incorporated v Alan Martin Dykes & Ors [2026] EWHC 3 (Ch)

[2026] EWHC 3 (Ch)Case No BL-2022-BRS-000011IN THE HIGH COURT OF JUSTICEVenue BUSINESS & PROPERTY COURTS IN BRISTOLBUSINESS LIST (Ch D)Venue Bristol Civil & Family Justice Centre, Bristol BS1 6GRDate 12/01/2026
Before
HHJ RUSSEN KC(Sitting as a judge of the High Court)
Between
DOUGLAS HOMES HOUSING INCORPORATEDClaimantALAN MARTIN DYKESDefendant- and -, ALAN MARTIN DYKES Defendant, -and-WAYNE DAVID BRAUND Third Party Party-and-ARCADE PLUS LTD Fourth Party-and-ARCADE PROPERTY HOLDINGS LIMITED Fifth Party-and-ARCADE ST CLEMENTS LIMITED Sixth Party for DOUGLAS HOMES HOUSING INCORPORATED Claimant
HUGH SIMS KC and CHRISTOPHER HARE (instructed by Veale Wasbrough Vizards LLP) for Claimant and THIRD PARTYRAJ ARUMUGAM (instructed by Stone King LLP) for Defendant and FOURTH TO SIXTH PARTIESHearing Hearing dates: 20 th and 21 st November 2025Draft judgment circulated on 19 th December 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on Monday 12 th January 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HHJ RUSSEN KC:
[1]These proceedings concern disputes over the entitlement to the value of development sites in Bristol.[2]This judgment addresses applications for the summary determination or disposal of some of the pleaded issues between the parties. However, a recent re-re-amendment by the Claimant (‘DHHI’) and Third Party (‘Mr Braund’) of their statement of case, on the relevant point, has led the Defendant (‘Mr Dykes’) now to accept that an issue that had been identified by him for summary judgment, or strike out, must go to trial, albeit that his alternative application remains that it should be tried as a preliminary issue.[3]Subject to any summary disposal of particular issues by this judgment, and recognising that what follows is a reflection of the rival pleaded cases shorn of their complexity, the main issues for trial in these proceedings are as follows:(1) Who, now, is the beneficial owner of DHHI, a company incorporated in the UAE (“the Trust Issue”)? Is it Mr Braund or Mr Dykes? This is the issue which I am no longer asked to determine summarily but which Mr Dykes says should be tried as a preliminary issue. That is because his position is that, if he is found to be solely entitled to the shares in DHHI, then he will cause the company to discontinue its claim against him.(2) Did Mr Dykes commit a repudiatory breach of an agreement dated 8 May 2017 between himself and DHHI (‘the Development Agreement’) for the promotion, development and sale of one of the sites (‘the Repudiatory Breach Issue’)? If so, what damages are recoverable by DHHI? DHHI accepts that any trial over the quantum of damages should take place after the determination of all issues of liability.(3) Should an account be ordered against Mr Braundin favour of Mr Dykes on the basis that Mr Braund owed a fiduciary duty in respect of payments made out of Mr Dykes’s bank and building society accounts in respect of (or ostensibly in respect of) various developments including that governed by the Development Agreement (‘the Account Issue’)? Alongside Mr Dykes, the Fourth to Sixth Parties (‘the Arcade Companies’) are also parties to the Account Issue on the basis that Mr Braund is accountable to them in respect of other development properties (in or around Bristol) respectively owned by them.[4]Mr Dykes has at all relevant times been and he remains the owner of the registered titles to land comprising what is described in this judgment as the Douglas Road Site in Kingswood, Bristol. It is one of a number of properties acquired by Mr Dykes (who is now in his late 70s) since he began acquiring and developing commercial and residential properties in the Bristol area in the 1970s. The Douglas Road Site is a valuable development site. In November 2006, Persimmon Homes offered £16.118m for it subject to planning permission for residential development being obtained. Instead of going with the Persimmon proposal, Mr Dykes instead entered into the Development Agreement with DHHI in May 2017.[5]By 2017, Mr Dykes and Mr Braund (who is now in his late 50s) were business associates and friends whose mutual dealings relating to property development (initially Mr Braund carried out general building work for Mr Dykes) went back to the early 1990s. Although Mr Braund disputes it, Mr Dykes says Mr Braund suggested that their development of the Douglas Road Site together would be more beneficial than him selling to Persimmon.[6]Much of DHHI’s value derives from its interest under the Development Agreement. By Amended Particulars of Claim served in May 2024 (“the APOC”), DHHI seeks damages in the sum of £29,368,603 from Mr Dykes for his alleged repudiatory breach of the Development Agreement. Damages are sought on the basis that Mr Dykes’s purported termination of the Development Agreement, which is central to DHHI’s claim of a repudiatory breach, has meant that the Douglas Road Site has not been developed as envisaged.[7]Between 2018 and late 2021, DHHI’s assets also included the land and buildings on two other sites in Kingswood – the Lucas Ingredients Building and the Strachan Henshaw Building – that had previously been in the personal ownership of Mr Dykes. Mr Dykes bought the Lucas Ingredients Building for £1m in 1999 and the Strachan Henshaw Building in 2000 for £1.7m. He transferred ownership of them to DHHI for £1 each on 5 April 2018.[8]On that same date, 5 April 2018, Mr Braund, as the registered holder of the shares in DHHI, declared himself trustee of those shares for Mr Dykes by a Declaration of Trust (‘the DoT’). The Trust Issue is therefore one between Mr Dykes and Mr Braund and it arises out of the fact that Mr Braund says (now in greater detail by the further amendment mentioned above) that the DoT is ineffective.[9]On or about 22 December 2021, DHHI sold the Lucas Ingredients Building and the Strachan Henshaw Building to Douglas Homes (Bristol) Limited (‘DHBL’) for £1. Mr Braund was the sole shareholder of DHBL. On 11 May 2022, DHBL sold the Lucas Ingredients Building and the Strachan Henshaw Building to a third party for £1m and £2m respectively. This was before the Trust Issue surfaced. As I mention below in connection with Mr Dykes’s application, although the Development Agreement was vague if not silent upon the detail of the development costs of the Douglas Road Site and who was to carry out the development works (DHHI assumed the role of employer’s agent and was to be responsible for the sales of the residential units to be constructed on the site) it would appear from information already produced in connection with the Account Issue that DHBL acted as the main contractor on the development. DHBL has since gone into liquidation. The application by DHHI and Mr Braund[10]By an Application Notice dated 26 February 2025,(1) DHHI seeks summary judgment against Mr Dykes on its claim against him and(2) Mr Braund seeks the striking out of, alternatively reverse summary judgment, on the claim made by Mr Dykes and the Arcade Companies seeking an account against him.[11]So far as the first limb is concerned, the supporting witness statement of DHHI’s solicitor, Mr Edward Husband, referred to DHHI seeking summary judgment “in respect of all of its claim against Mr Dykes, or alternatively in respect of one of more issues against him”. A later section of that witness statement clarified that DHHI was seeking summary judgment (with quantum to be determined at a later stage) on the basis that Mr Dykes had committed a clear repudiatory breach of the Development Agreement. The terms of an expert determination dated 17 March 2023 by Ms Victoria Russell (“the Expert”), a solicitor appointed by the Law Society in accordance with the terms of the Development Agreement (“the Second Determination”), are said by DHHI to leave no room for manoeuvre by Mr Dykes in meeting the allegation of repudiatory breach.[12]The first limb of the application by DHHI therefore rests upon the findings in the Second Determination, even though they did not extend to a finding that Mr Dykes had committed a repudiatory breach of the Development Agreement which DHHI was entitled to accept and then seek damages against him. DHHI says it is enough that the Expert found that Mr Dykes was not entitled to serve a termination notice under the Development Agreement on 8 November 2022. DHHI says this is a contractually binding determination. DHHI’s case is that Mr Dykes’s position that the Second Determination was “obviously wrong” (as it was put by his then solicitors), that he intended to challenge it (which his counsel Mr Arumugam said he had by his counterclaim) and his persistence in the contention that he had validly terminated the Development Agreement by that notice, taken together, amounted to a repudiatory breach by him. DHHI says it accepted that repudiatory breach by its solicitors’ letter dated 22 March 2023.[13]In these proceedings, DHHI seeks a declaration that it validly terminated the Development Agreement on 22 March 2023 in addition to the judgment for damages to be assessed that is sought by the present application.[14]So far as the second limb of the application is concerned, and as explained by Mr Sims KC and Professor Hare on behalf of DHHI and Mr Braund, the basis for this does not so much lie in a contention that the relevant statement of case (the Re-Amended Defence and Re-Amended Counterclaim -“theRAMDC” - served by Mr Dykes and the Arcade Companies) fails to plead reasonable grounds for seeking an account by reference to the alleged relationship between Mr Dykes and Mr Braund. Although Mr Husband’s witness statement had used language to that effect (and had also summarised the grounds for saying the account claim had “no prospect of success”), the emphasis of Mr Sims KC’s submission was instead upon the unsatisfactory way in which the claim to the account had been presented.[15]Mr Husband described the claim, overall, as being unparticularised and vague. This was a reference to the fact that (in what I described at the hearing as an exercise akin to a ‘quasi-account’ before the basis for one had been decided or it had been ordered by the court) the parties have already exchanged three detailed spreadsheets of figures which, so Mr Braund says, reveal that Mr Dykes and the Arcade Companies are unclear about what they are claiming. The account claim was also said to be a knee-jerk reaction by Mr Dykes to DHHI advancing a very substantial claim for damages against him in respect of his alleged repudiatory breach of the Development Agreement. Although Mr Sims KC said (by reference to the spreadsheets) that the pleaded claim for an account is sufficiently vague and incoherent to justify an order under CPR 3.4, his alternative submission was that the claim to an account should be stayed if not struck out.[16]That said, Mr Braund does raise a limitation defence to the account claim as it is currently pleaded. He says that some of the payments in the various categories identified by Mr Husband are statute barred. This requires separate consideration on the application. The application by Mr Dykes and the Arcade Companies[17]By an Application Notice dated 28 February 2025, Mr Dykes sought the striking out of what was (prior to re-re-amendment) Mr Braund’s defence to his claim under the DoT and summary judgment in favour of Mr Dykes on the Trust Issue; alternatively, that the Trust Issue be determined as a preliminary issue.[18]I have already mentioned above that a subsequent amendment by Mr Braund, in late September 2025, on the Trust Issue has resulted in Mr Dykes now seeking only the alternative relief that it be directed to be tried as a preliminary issue. Mr Dykes states in his application that, if he is successful on the Trust Issue, “then I will instruct [DHHI] to discontinue the claim in these proceedings.” B. REASONING AND DECISION ON DHHI’S APPLICATION[19]I note that neither the draft order accompanying the application (which provides that “the First Applicant do have judgment against the First Respondent”) or Mr Husband’s supporting evidence specifically addresses the grant of declaratory relief sought by DHHI which is to the effect that it validly terminated the Development Agreement on 22 March 2023.[20]Success for DHHI on its application for judgment on its damages claim, on the basis that by that date Mr Dykes was in repudiatory breach of the Development Agreement, which justified DHHI’s termination, calls for analysis of the Second Determination. (1) The Second Determination[21]As the Second Determination is essentially the starting point for DHHI’s application for summary judgment for damages to be assessed, if not quite the end point as I explain below, I need to decide whether Mr Dykes has no real prospect of establishing that he is not finally and conclusively bound by the Expert’s finding ‘D’ which was:
“I therefore find and decide that Mr Dykes was not entitled to serve Notice of Termination with immediate effect on 8 November 2022”
(emphasis in the original). That was her decision on the question “Was Mr Dykes entitled to serve Notice of Termination with immediate effect on 8 November 2022?”[22]That question for me must be considered against the Expert’s ‘non-finding’ at ‘E’ where she addressed the question “If not [so entitled] has he repudiated the Agreement, entitling Douglas Homes to terminate the Agreement and seek damages?”. She said:
“I do not believe that I have jurisdiction under the narrow wording of Clause 7.1 of the Agreement to make a decision on this point. Similarly, I do not consider that I have jurisdiction to decide on [sic] whether either or both of the parties failed to act in good faith.”
[23]The language of clause 7.1 of the Development Agreement, conferring jurisdiction on the expert, is indeed narrow. Clause 7.1 provides as follows:
“Any dispute as to the interpretation of this Agreement or as to the wording of any document required to be entered into between the parties under the provisions of this Agreement shall be referred to determination by a solicitor (of not less than 10 years standing) experienced in the relevant matter to be agreed between the parties or (in default of agreement within 14 days) nominated on the application of either party by the President (or other available officer able to make such appointment) of the Law Society.”
[24]Clause 7.3 of the Development Agreement states that “[a]ny determination shall be made by the relevant umpire acting as an expert whose decision shall be final and binding …”; and continues by providing that the expert shall assume the parties wish to resolve such disputes or differences as quickly as possible and by making provision for a speedy process of dispute resolution.[25]Clause 11 of the Development Agreement states:
“Each party agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).”
[26]Therefore, on the clear language of clause 7 and 11, the Expert’s jurisdiction was confined to providing ostensibly final decisions in any dispute over what the Development Agreement, or any document required to be entered into between the parties under its provisions, actually mean. On such interpretative questions, the Development did not provide for any challenge on the ground of manifest error. On the face it, any wider dispute about the validity of an act taken by one of the parties under the Development Agreement (such as Mr Dykes’s unilateral service of the termination notice dated 8 November 2022) is a matter for the court under clause 11 and not for the Expert.[27]Although it is not material to the present application, a similar observation might be made about an earlier determination by the Expert dated 1 March 2022 (“the First Determination”). That concerned a dispute over the extent of Mr Dykes’s financial entitlement under clause 5 of the Development Agreement. DHHI disputed Mr Dykes’s entitlement to an additional £67,517 per plot over the £8,000 per plot mentioned in clause 5.6. The Expert not only found that DHHI’s interpretation of the Development Agreement was correct but found that the excess payments were “wrongfully made” and she “ordered” Mr Dykes to repay the sum of £922,904.90 together with interest at 8% over the Bank of England base rate. The First Determination recited the terms of clause 7 of the Development, her rejection of an argument by Mr Dykes that an earlier notice of termination had curtailed the Expert’s jurisdiction, DHHI’s contention that the additional payments received by him were not in accordance with the Development Agreement and (Mr Dykes having put the point before her as if it was within the Expert’s jurisdiction) her rejection of his argument that its terms had been orally varied. The last finding was essentially on the grounds that clause 13 of the agreement contained an ‘entire agreement’ provision and that “no evidence has been adduced by Mr Dykes in support of this contention.” In addition to “ordering” the payment, the Expert said (at finding ‘f’):
“Subject to the validity or otherwise of the Notice of Termination, I order Mr Dykes to sign all future documents in accordance with the Agreement.”
This was a reference to land transfer and registration documents briefly mentioned in paragraph 32 of the First Determination.[28]I am not concerned with the validity of the First Determination, in so far as it went beyond a determination of the meaning of clause 5, because Mr Dykes paid the £922,904.90 in response to the service of a statutory demand dated 12 April 2022. DHHI’s previously pleaded claim for an order that Mr Dykes should, in accordance with the First Determination, sign all outstanding and future transfer documents (in relation to plots at Douglas Road Site) was abandoned by an amendment to the particulars of claim in May 2024. However, given the point mentioned next, I note that Mr Dykes’s original Defence and Counterclaim dated 26 July 2022 sought a declaration that finding ‘f’ (not being interpretative of the Development Agreement) was “beyond the power of the expert and is a nullity” (my emphasis). (2) Mr Dykes’s pleaded challenge to the Second Determination[29]Mr Dykes’s current pleaded challenge to the Second Determination is that it is “wrong and should be set aside and/or is unenforceable”. That is said not only in relation to the key finding ‘D’ but also ‘B’, ‘C’ and ‘F’. Finding ‘F’ was that DHHI was liable for 25% of the Expert’s fees and Mr Dykes was liable for 75% of them. Findings ‘B’ and ‘C’ were related to finding ‘D’ because (despite finding ‘A’ being that insurance policies were not being maintained in accordance with clause 18.4 of the Development Agreement at the time Mr Dykes’s solicitors made a request for documentary evidence of insurance) the Expert found that this was not a fundamental breach by DHHI going to the root of the agreement (‘B’) and that Mr Dykes was not entitled to copies of all of the insurance policy documents since the start of the agreement (‘C’).[30]As DHHI’s counsel correctly observed, a claim that a decision is “unenforceable” (or that it should be set aside) is something quite different from saying it is a “nullity”. The RAMDC does not use the same language (of “nullity”) as was earlier deployed in clearly alleging the First Determination was of no effect because it went beyond the Expert’s jurisdiction. The suggestion that the Second Determination is a nullity in the respects now challenged by Mr Dykes (most significantly, findings ‘B’ and ‘D’) was one which instead appeared for the first time in Mr Arumugam’s skeleton argument served a few days before the hearing. In his skeleton argument, Mr Arumugam pointed to the clear limit upon the Expert’s jurisdiction under clause 7.1 which, he submitted, did not confer jurisdiction to determine such matters.[31]DHHI’s primary position was that the court should not entertain this unpleaded ground of challenge to the Second Determination. Mr Sims KC pointed to the fact that Mr Dykes’s defence had already been re-amended and no draft amendment (taking the nullity point) to the RAMDC had been made in the intervening months since DHHI issued its application. Nevertheless, DHHI’s counsel did produce further authority at the hearing which engaged with the point in the cases relied upon by Mr Arumugam (and addressed below) to the effect that, if the expert has answered the right question in the wrong way, her decision will be binding but, if she has answered the wrong question, it will be a nullity. The authorities relied upon by DHHI in response (also addressed below) are essentially to the effect that the party challenging the decision on the ground that it is a nullity may be found to have waived or to be estopped from taking a point about the limits of her jurisdiction.[32]Mr Arumugam said that, if necessary, he would seek to further amend Mr Dykes’s defence to also plead that the Second Determination was “a nullity for want of jurisdiction” (or words to that effect). Given the nature of DHHI’s application and the fact that the Second Determination is an essential building block in DHHI’s claim based on repudiatory breach, I consider the right course must be for me to engage with the point about jurisdiction in this judgment. The point has surfaced late and has not been pleaded but it is a legal one which, if it is either correct or remains seriously arguable in the light of the authorities relied upon by the parties, should dissuade the court from granting summary judgment. It would be wrong for me to ignore it. (3) Mr Dykes’s approach prior to the Second Determination[33]Although the language of clause 7.1 clearly confines the Expert’s jurisdiction to matters of contractual interpretation and, more specifically, to those documents of a synallagmatic as opposed to unilateral type, Mr Dykes’s then solicitors clearly treated the matters addressed within the Expert’s findings ‘B’ and ‘D’ as falling within her jurisdiction. By their Counter-Submission on behalf of Mr Dykes dated 3 March 2023, Dallas & Co said:
“4. COUNTER SUBMISSION TO THE COMPANY’S SUBMISSION: THE CURRENT DISPUTE 4.1 AD agrees that the matters that fall with [sic] Ms Russell’s jurisdiction and which she is obliged to determine are: 4.1.1 As properly construed, whether the Company is in breach of clause 18 of the Agreement. Although the Company has artificially sought to restrict the breach that is purportedly in issue as being only Clause 18.5, that simply does not represent the scope of the dispute between the parties and the grounds upon which AD terminated the Agreement; 4.1.2 If so, was that breach “fundamental” within the meaning clause 21.1(a) of the Agreement, such that AD was entitled to terminate the Agreement pursuant to that clause; 4.1.3 In the alternative, was AD entitled to terminate the Agreement pursuant to clause 21.1(b) of the Agreement. 4.2 It is submitted that the above issues are matters of interpretation of the Agreement.”
[34]The introduction to the Counter-Submission (paragraph 1.1) began by saying it was made “pursuant to clause 7 of the [Development] Agreement.” The submission in paragraph 4.2 seems obviously questionable to me (at least so far as the questions in paragraphs 4.1.2 and 4.1.3 are concerned) but it was accepted and acted upon by the Expert.[35]Although DHHI had raised the question of “whether AD is in repudiatory breach of the Agreement, as a result of his decision to terminate the Agreement”, paragraph 4.4 of Mr Dykes’s Counter-Submission did on that issue refer to the jurisdiction circumscribed by clause 7.1 in saying “it is submitted that the …. issue does not fall within the Clause 7.1 jurisdiction because it does not concern the interpretation of the Agreement.” In the light of what strikes me as the clear tension between that submission and the one made in relation to the question identified in paragraph 4.1.2 of the Counter-Submission, the Expert’s non-finding at ‘E’ illustrates the point (now relied upon by DHHI) that she did assume jurisdiction over matters which, regardless of the obvious limitations of clause 7.1, were positively asserted by both parties to be ones for her to decide.[36]Therefore, on the face of things, Mr Dykes’s Counter-Submission exposed him to the Expert’s findings ‘B’ and ‘D’ being “final and binding” under clause 7.3 of the Development Agreement. (4) Issues for decision[37]The Expert made no finding (finally binding or otherwise) that Mr Dykes was in repudiatory breach in serving his notice of termination. Mr Dykes now contends that findings ‘B’ and ‘D’ fell outside her jurisdiction and that they were wrong in law. Although they were not identified as such by the parties, I regard the essential questions for my determination on DHHI’s application (i.e. to the summary judgment standard) as being:a. Is Mr Dykes precluded from arguing that the Expert’s findings in the Second Determination (adverse to him) are a nullity for want of jurisdiction?b. Is Mr Dykes precluded from challenging them, or any one of them, on the ground of a suggested error of law (having a real prospect of success at trial) by reason of the “final and binding” language of clause 7.3 of the Development Agreement?c. If the answer to both(1) and(2) above is ‘yes’, was Mr Dykes in repudiatory breach of the Development Agreement which DHHI was entitled to accept on 22 March 2023?[38]For reasons which emerge from my analysis of the question, I regard the outcome under the first question as being inextricably linked with the other two, particularly the second. Whether the analysis is one of estoppel by convention or, as I think, the doctrine of waiver (i.e. ‘waiver by estoppel’), a necessary element of a finding that Mr Dykes is now precluded from challenging the Second Determination is that it would be inequitable (or, synonymously, unconscionable) for him to resile from the position he adopted in seeking it. Most recently, in Cobden v Cobden [2025] EWCA Civ 1612, at [58], Lewison LJ has observed:
“The animating principle of all kinds of estoppel is the prevention of the unconscionable repudiation of promises or assurances.”
As I see it, there is an obvious difference between, on the one hand, Mr Dykes seeking to resile from the Expert’s findings ‘B’ and ‘D’ if they (or either of them) are still vulnerable to challenge in these proceedings on the ground of an error of law and, on the other, him seeking to do so if their effect, as DHHI contends, is that a judicial finding that, as at 22 March 2023, Mr Dykes was in repudiatory breach of the Development Agreement must be treated as being “in the bag”.[39]Of the three questions, therefore, I consider the answer to the second to be central to the outcome of DHHI’s application. Not only is the third question predicated upon the answer to the second being favourable to DHHI but that answer also informs the answer to the first question.[40]The first two questions above raise points of law for the purposes of the well-known principles identified by Lewison J, as he then was, in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), at [15]. If the answer to them is clearly in favour of DHHI then I should grasp the nettle and decide them. A key point for me to decide would then be whether or not a decision in favour of DHHI on both compels a similarly favourable answer for DHHI on the third question.[41]The third question above is of course left open by the Expert’s non-finding at ‘E’. DHHI’s pleaded case is that Mr Dykes’s continued protest, after and despite the Second Determination, that he had validly terminated the Development Agreement was at least until DHHI’s acceptance of it on 22 March 2023 (though see below) a continuing breach of the Development Agreement. Mr Arumugam emphasised that Mr Dykes’s “appeal” to the court against findings ‘B’ and ‘D’ (and ‘C’ and ‘F’) is now made by his counterclaim. I note from the court file that it was not until 15 August 2024 that his defence and counterclaim was first amended in the light of the Second Determination and the challenge to those findings was formally made to advance his case that he had already validly terminated the Development Agreement before DHHI purported to terminate it. However, although not formally made until after DHHI’s purported acceptance on 22 March 2023, by a letter written the day before Dallas & Co had said “[w]e are writing to inform you that it is our client’s intention to challenge Ms Russell’s decision on the basis that it is obviously wrong”; and they went on to state that they would provide a copy of Mr Dyke’s application “in due course”. That letter prompted DHHI’s purported acceptance.[42]On that third question, I understood DHHI’s position to be that a decision, now, that the answers to the first and second questions are against Mr Dykes will be decisive on the answer to the third question: the conclusion that there is no substance in that “appeal” will establish the position as at 22 March 2023. However, it seems to me that the court would need to consider separately whether or not Mr Dykes was in repudiatory breach in questioning the validity of the Second Determination (under finding ‘D’) at a time when, as at 22 March 2023, there had been no judicial determination upon its effect and there might be said to have been genuine grounds for challenging its validity by reference to clause 7.1. The thought obviously arises from reading the clear language of the clause limiting the scope of the Expert’s jurisdiction to matters of interpretation of certain types of documents (which do not obviously extend to unilateral notices of termination). Even if a compelling positive answer to the first question appears to squash the thought, there is scope for it to resurface under the second question. Is an avowedly final and binding decision by an expert, made in the exercise of an unquestionable jurisdiction, immune from any challenge on the ground of an error of law?[43]So far as potential independent life in the third question is concerned, it is also relevant to note that the APOC served on 29 May 2024 (so, like the defence and counterclaim on the point, this was after the purported acceptance on 22 March 2023) made the point that Mr Dykes “has never lodged an appeal” against the Second Determination. Although DHHI seeks a declaration that it validly terminated the Development Agreement on 22 March 2023, the APOC (at paragraphs 16 to 19(a)) alleges a “continuing and ongoing breach” of it by reference to the fact (see paragraph 17) that Mr Dykes had “never” lodged a challenge of the kind intimated in Dallas & Co’s letter of that same date. Even though DHHI seeks that declaration of an earlier termination, it therefore appears to be part of its own case of a repudiatory breach by Mr Dykes that the clock does not stop at 22 March 2023. (5) Analysis on Question 1: Waiver/Estoppel[44]The first question in paragraph 37 above reflects the way the challenge to the Second Determination was put in Mr Arumugam’s skeleton argument if not yet in his client’s pleaded case.[45]Mr Sims KC and Professor Hare submitted that Mr Dykes’s challenge to the Expert’s jurisdiction was hopeless in the light of what had been said in the Counter-Submission quoted above. They referred to the view of the authors of Kendall on Expert Determination (5th ed) addressing the concept of an implied submission to the jurisdiction of an arbitrator, or to an extension of an arbitrator’s jurisdiction, where a party takes part in the arbitration without reserving its position on jurisdiction. The view is expressed, by reference to the principle of estoppel by convention, that:
“This line of argument could be used as a defence to a challenge to an expert’s jurisdiction. The other party may be able to argue that because both parties have acted on the assumption that the expert does have jurisdiction, the party disputing jurisdiction is precluded from denying that the expert has jurisdiction, or that a party has approbated the decision of the expert ……”
[46]Any estoppel requires as a necessary first step a sufficiently clear and unambiguous representation or promise or (for the purpose of an estoppel by convention as contemplated by Kendall) an expressly shared common assumption between the parties. The textbook identifies an estoppel by convention as the relevant type of estoppel. I infer this may be because of uncertainty over whether a representation of law (such as that made in paragraph 4.2 of the Counter-Submission quoted in paragraph 33 above) can support an estoppel by representation, particularly where (as here) the representation is made and acted upon by a third party (the Expert). An estoppel by convention does not rest upon a representation, or promise, and may typically arise where contracting parties conduct themselves on the basis of a shared mistaken assumption as to the true legal effect of their contract.[47]DHHI’s counsel also relied upon the decision of Mr Stephen Furst QC, sitting as a deputy High Court Judge, in ZVI Construction Co LLC v University of Notre Dame (USA) in England [2016] EWHC 1914 (TCC); [2016] Bus LR 1311. That was his decision on a claim brought by ZVI to prevent enforcement of an expert’s decision. ZVI contended that, although it was a party to the development agreement in question, on the true construction of the expert determination clause the expert only had jurisdiction to determine a dispute between the other two parties to it (one of whom, TJAC, was the seller of the property and closely related to ZVI) on matters other than ZVI’s obligations as the developer of the property.[48]Mr Furst QC held that ZVI impliedly agreed to the expert having jurisdiction to decide issues relating to construction defects that had been referred to him under one of the dispute resolution clauses in the agreement. His reasons were summarised at [51]-[52], with his clarification about the nature and extent of the implied agreement at [53]. He made the following observations in support of that conclusion:
“Submission to Expert Determination 44. There seems to me little doubt that a party to a contract containing a clause providing for disputes to be decided by an expert can expressly or impliedly, by words or conduct, confer jurisdiction on such an expert where otherwise there would be none. 45. This, it would seem to me, was decided albeit obiter, in Rhodia Chirex Ltd Rhodia Chirex Ltd v Laker Vent Engineering Ltd [2003] EWCA Civ 1859 . by the Court of Appeal. The case concerned the mechanism for resolving disputes following a termination for convenience by the employer under the IChemE Model Form of Contract, 3rd (June 1995) edition. In short the Court of Appeal held that a dispute following the termination of the contractor’s employment under the contract had properly been referred to the expert. However the Judge at first instance had also held that the employer had submitted to the jurisdiction of the expert, reaching that conclusion on the basis that although the employer had reserved its position, it did so too late. In deference to the arguments put forward and because it disagreed with the Judge, the Court of Appeal considered a further ground of appeal on this point. 46. Having referred to a passage from the first instance judgment, Auld L.J., with whom Hale and Dyson L.JJ. (as they then were) agreed, said, at paragraph 36: “It may be that failure by a party expressly to reserve its position coupled with other circumstances could amount to a submission to the jurisdiction of an expert. But neither of the authorities upon which the Judge relied for that proposition, Fastrack v. Morrison (2000) 4 BLR 168 and Whiteways Contractors (Sussex) Ltd. v. Impressa Castelli Construction UK Ltd. [2001] 75 Con LR 92, are directly in point. More important is whether on the facts of this case, it can be said that Rhodia had no real prospect of successfully defending Laker Vent's claim that it had submitted to the jurisdiction of the expert. This is essentially a factual question. It turns largely on the documentary evidence before the Judge, the essentials of which I have summarised.” 47. Auld L.J. returned to the point at paragraph 40: “As to whether failure by a contracting party to reserve its position on jurisdiction would amount to a submission to it is a more difficult question, and one that is highly fact sensitive. To succeed on such a basis at trial, a claimant would have to show that such silence, when considered with all the other material facts, amounted to a clear submission to the jurisdiction. See e.g. Project Consultancy Group v. The Trustees of the Grey Trust (1999) BLR 377; Nordot Engineering Services Ltd. Siemens Plc(unreported) 14th April 2000; and Cowlin Construction Ltd. V. CFW Architects (2003) BLR 241 It would not be enough to conclude, as the Judge did at the beginning of the passage I have set out in paragraph 34 above, that Rhodia "did not make it clear what they were saying if it was that they were not abandoning any jurisdictional point." [my emphasis] Still less is that a permissible basis upon which to give summary judgment against it on such an issue. Given the history of the matter as contained in and illustrated by the documentation before the Judge, I would have held, had it been necessary, that Laker Vent had not shown that Rhodia had no real prospect of successfully defending on this issue, and would have allowed this ground of appeal.” 48. As I read these passages, the Court of Appeal was accepting that a party could submit a dispute to the jurisdiction of an expert under a clause such as Clause 17.1 of the Development Agreement; in other words there is no issue of principle which exempts expert determination clauses from such a doctrine. It is however a question of fact as to whether there has been “a clear submission to the jurisdiction”.” “It may be that failure by a party expressly to reserve its position coupled with other circumstances could amount to a submission to the jurisdiction of an expert. But neither of the authorities upon which the Judge relied for that proposition, Fastrack v. Morrison (2000) 4 BLR 168 and Whiteways Contractors (Sussex) Ltd. v. Impressa Castelli Construction UK Ltd. [2001] 75 Con LR 92, are directly in point. More important is whether on the facts of this case, it can be said that Rhodia had no real prospect of successfully defending Laker Vent's claim that it had submitted to the jurisdiction of the expert. This is essentially a factual question. It turns largely on the documentary evidence before the Judge, the essentials of which I have summarised.” “As to whether failure by a contracting party to reserve its position on jurisdiction would amount to a submission to it is a more difficult question, and one that is highly fact sensitive. To succeed on such a basis at trial, a claimant would have to show that such silence, when considered with all the other material facts, amounted to a clear submission to the jurisdiction. See e.g. Project Consultancy Group v. The Trustees of the Grey Trust (1999) BLR 377; Nordot Engineering Services Ltd. Siemens Plc(unreported) 14th April 2000; and Cowlin Construction Ltd. V. CFW Architects (2003) BLR 241 It would not be enough to conclude, as the Judge did at the beginning of the passage I have set out in paragraph 34 above, that Rhodia "did not make it clear what they were saying if it was that they were not abandoning any jurisdictional point." [my emphasis] Still less is that a permissible basis upon which to give summary judgment against it on such an issue. Given the history of the matter as contained in and illustrated by the documentation before the Judge, I would have held, had it been necessary, that Laker Vent had not shown that Rhodia had no real prospect of successfully defending on this issue, and would have allowed this ground of appeal.”
[49]Mr Furst QC continued his judgment on the point by referring to issues of submission to jurisdiction which arise quite frequently in the context of enforcement in the TCC of decisions of adjudicators given under the Housing Grants, Construction and Regeneration Act (as amended) 1996 (“the HGCRA”). After referring to one such decision of Akenhead J in 2010, he continued:
“50. Although this formulation applies to adjudication, it provides a useful summary of the approach to be taken in a case such as the present and merely expands upon the formulation of the issue as expressed by the Court of Appeal in Rhodia Chirex Ltd.. However, at sub-paragraph (e) above, Akenhead J. goes further in finding that a waiver can also arise in such circumstances. Once again, I can see no reason in principle why, by words or conduct, a party to a contract might not waive a right to object to the jurisdiction of an expert under an expert determination clause. Once again, it is all a question of fact.”
[50]In paragraph [45] quoted above, the judge therefore outlined why the observations in Rhodia Chirex Limited v Laker Vent Engineering Limited [2003] EWCA Civ 1859; [2004] BLR 75, about any issue over a party’s submission to the jurisdiction being “one that is highly fact sensitive”, did not form part of the ratio of the Court of Appeal’s decision. That is because the court agreed with the decision of the judge below to grant summary judgment on the basis that the contract, on its true construction, did confer jurisdiction upon the expert to make the decisions he did. The reason why, if it had been necessary to do so, the Court of Appeal would have overturned the judge’s conclusion that Rhodia had in any event submitted to his jurisdiction (assuming it did not exist under the contract) was because, as Auld LJ said at [39], “the history of the matter, as I have summarised it, shows no express submission by Rhodia to the expert’s jurisdiction.” It was that history which made the point unsuitable for determination against Rhodia on a summary judgment application.[51]Auld LJ’s narrative of the relevant events in Rhodia Chirex shows that Rhodia expressly challenged the expert’s jurisdiction before he decided he had jurisdiction and that Rhodia’s later engagement with the detail of Laker Vent’s claim was expressly made without prejudice to their primary contention that he did not have jurisdiction to deal with the matters referred to him. Those facts could hardly be more distinguishable from Mr Dykes’ position (see paragraph 33 above) agreeing that the Expert had jurisdiction over the relevant matters and was obliged to decide them.[52]Mr Dykes adopted that position, in March 2023, in relation to findings ‘B’, ‘C’ and ‘D’ when he and his then solicitors plainly had in mind the terms of clause 7.1 of the Development Agreement which circumscribe the Expert’s jurisdiction. That is clear both from the position adopted by Counter-Submission in relation to ‘E’ and his previously pleaded case challenging the First Determination.[53]The judge in ZVI Construction also held, by reference to the matters summarised at [51]-[52] and [63] of the judgment, that(1) at [64], an estoppel by convention had arisen which prevented ZVI from contending that the expert had decided matters falling outside his jurisdiction on what it said was the true construction of the particular dispute resolution clause; and(2) at [65], that ZVI had waived any right it may have had to object to the expert’s jurisdiction over those matters. He analysed the principles applicable to an estoppel by convention at [56]-[62] and concluded that the same analysis supported his finding of a waiver. The textbook summary he adopted for that purpose, at [56], was in fact a quote of all but the fifth and last of the propositions in the judgment of Briggs J, as he then was, in Revenue and Customs Commissioners v Benchdollar Ltd [2009] EWHC 1310 (Ch); [2010] 1 All ER 174, at [52]. Those propositions, including the final fifth one, have since been approved by the decision of the Supreme Court in Tinkler v Revenue and Customs Commissioners [2021] UKSC 39, at [49]-[53], on the basis that, for the first of the propositions, there needs to be a “crossing of the line” by words or conduct from which the common assumption between the parties may be properly inferred.[54]In ZVI Construction the judge dealt separately with the question of unconscionability (the fifth proposition established by Benchdollar and Tinkler). He referred to another decision of Akenhead J in Mears Ltd v Shoreline Housing Partnership Ltd (No. 2) [2015] EWHC 1396 (TCC); (2015) Con LR 157 in support of his conclusion that detriment to the other party, sufficient to make it unjust or unconscionable for ZVI to assert that the expert lacked jurisdiction, could be inferred from that party continuing with the expert determination and bringing proceedings in the US courts in reliance upon the expert’s decision.[55]DHHI’s counsel also relied upon the earlier decision of HHJ Toulmin QC in Maymac Environmental Services v Faraday Building Services (unreported) given on 16 October 2000. That was a decision, on an application for summary judgment for enforcement of an adjudicator’s decision, about the adjudicator’s jurisdiction under the HGCRA. The argument of Faraday was that there was no concluded construction contact between the parties, grounding such jurisdiction under the Act, as was evident from the terms of a letter that had not been put before the adjudicator. The judge rejected the challenge on the facts but went on to say, assuming he was wrong in that conclusion, that Faraday had agreed that the dispute should be adjudicated and could not resile from that agreement. He said, at page 19 of the judgment:
“Accordingly, Faraday are estopped by representation and convention from now arguing that the Act and scheme did not apply and that the adjudicator was not entitled to make an adjudication [sic] which would be binding until the final determination of the dispute.”
[56]Counsel’s reliance upon Maymac prompted me to observe at the hearing that issues arising out of adjudicators’ decisions upon their own competence, or jurisdiction, to make the decision are not uncommon in applications for summary judgment seeking to enforce adjudicators’ decisions under what is now section 9 of the TCC Guide. In some cases they arise out of the adjudicator’s substantive determination that there is a construction contract between the parties, which serves to establish his/her jurisdiction under it, and in others (where the respondent to the summary judgment application contends there was no jurisdiction over a dispute said by it to have arisen under a separate contract) the adjudicator will have decided against the respondent that there was a single contract giving him/her jurisdiction over the (entire) dispute.[57]Maymac is an example of the first type of case where the respondent’s position in the adjudication was such that it recognised the adjudicator’s substantive determination of the point (which will either be a point of law or one of mixed fact and law) would, in the circumstances predicated by such an application for summary judgment, necessarily involve a determination that he/she had jurisdiction to make it. Although they were not referred to during the hearing, the decisions in Air Design (Kent) Limited v Deerglen (Jersey) Limited [2008] EWHC 3047 (TCC), at [22]-[23] per Akenhead J, LJH Paving v Meeres Civil Engineering Limited [2019] EWHC 2601 (TCC); [2020] BLR 57, at [33] per Mr Adam Constable QC, as a then deputy High Court judge, and LAPP Industries Ltd v 1st Formations Limited [2025] EWHC 943 (TCC), 219 Con. L.R. 108, at [29] per Mr Adrian Williamson KC, are all examples of the second type of case where the court concluded that the respondent should not be able to resile from its earlier recognition of a clear overlap between the issue of substance and jurisdiction that fell to be determined by the adjudicator.[58]As the focus of an estoppel by convention is upon an assumed state of facts or law, common to both parties and expressly shared between them, together with detrimental reliance upon the assumption by the estoppel raiser, I would have thought these circumstances involving a process of dispute resolution by a third-party adjudicator are better analysed in terms of there having been a waiver by the respondent of any reliance upon a distinct jurisdictional point. That is how the judge in ZVI Construction analysed Maymac.[59]It seems to me that the principle of waiver is also the most relevant one to apply in determining the answer to this first question. In this case, whatever DHHI and its lawyers may have considered to be the jurisdictional scope of clause 7.1, the objection taken in paragraph 4.4 of Mr Dykes’s Counter-Submission (in relation to issue ‘E’) demonstrates that he and his lawyers understood its true meaning. It is therefore difficult to analyse matters, as they emerge from the rival submissions to the Expert, in terms of a shared understanding that her jurisdiction under the language of the Development Agreement extended beyond her interpreting a limited class of documents.[60]In expressing the view that the facts of this case appear to be better suited to an argument of waiver, I recognise that the issue underpinning this first question surfaced only shortly before the hearing as a result of Mr Arumugam saying the Second Determination was not just wrong but a nullity. This meant there was limited opportunity for counsel to reflect upon the newly introduced authorities of Kendall, ZVI Construction and Meymac and any wider analysis of the point.[61]DHHI argues that Mr Dykes clearly represented that he was not relying on the circumscribed language of clause 7.1 of the Development Agreement – i.e. had waived any reliance upon its limitations - and that amounted to a clear submission to the Expert’s jurisdiction (to use the language of Auld LC in Rhodia Chirex quoted in ZVI Construction) upon which it (and the Expert) relied. This argument therefore involves the core components of an estoppel or waiver, including the necessary reliance by the party asserting it.[62]In Tinkler, at [63]-[64] and [89] respectively, Lord Burrows and Lord Briggs addressed the requirements of detrimental reliance by the party raising an estoppel by convention and the related unconscionability involved in the other party attempting to resile from the assumed position. They noted that such unconscionability will normally arise where there has been reliance of the kind that the other party either intended or could reasonably be expected to have foreseen.[63]Any finding that Mr Dykes waived reliance upon the limitations of clause 7.1 would also require me to be satisfied that DHHI acted upon Mr Dykes’s representation in the Counter-Submission, that the Expert’s jurisdiction was wider than had been contractually agreed, so as to make it inequitable for him to go back on it: see generally Chitty on Contracts (35th ed) Vol 1, paras 6-089 to 6-092, 26-047 and 28-60 to 28-061for a discussion of ‘waiver by estoppel’ (or ‘forbearance’). As already noted, in ZVI Construction, the judge said the same detrimental reliance (summarised at [63]) supported both a finding of an estoppel by convention and waiver.[64]Clause 13 of the Development Agreement contains an ‘entire contract’ clause which also provides that the agreement may only be varied by the parties in writing. Although Mr Sims KC referred to the first element of this provision in emphasising that Mr Dykes had signed up to the “final and binding” nature of the Second Determination, Mr Arumugam did not rely upon the clause in suggesting that it precluded DHHI’s argument based on an estoppel. Nevertheless, it is necessary to consider its potential impact in addressing whether or not the Expert’s jurisdiction under clause 7.1 was, in effect, expanded as a result of the parties’ conduct based on their shared assumption that it went beyond her deciding purely interpretative questions and covered the type of dispute or claim reserved for the court under clause 11 of the Development Agreement.[65]In ZVI Construction, the argument of estoppel and waiver succeeded in the face of a similar clause which also stipulated that any “waiver of any provisions of this agreement” should also be in writing. ZVI’s position was that the clause did not in principle prevent an estoppel by convention arising but that its terms did mean the court would need clear evidence to establish that its effect had been undone by conduct. The judge (at [71]-[81]) analysed the authorities which establish that an entire agreement clause, including a non-waiver provision requiring writing, may itself be waived by the parties’ conduct. He said it was not necessary to show that the parties directed their minds to the relevant clause (an exercise which, I think, would probably prompt them to think about recording their revised position more formally) and that the agreement embodied in the clause is no more than a starting point in the fact-sensitive inquiry as to whether the parties, by words or conduct, are to be taken to have varied or waived the other provision(s) of their agreement by which they are otherwise bound.[66]The key authority relied upon in ZVI Construction for the proposition that an entire agreement clause did not prevent the operations of the doctrines of waiver or estoppel was the decision of the Court of Appeal in MWB Business Exchange Centres v Rock Advertising Ltd [2016] EWCA Civ 555. However, that decision has since been reversed by the decision of the Supreme Court: [2018] UKSC 24; [2019] AC 119.[67]In MWB, the entire agreement/no oral modification clause did not, as in ZVI Construction, talk about ‘waiver’. Instead, the relevant clause was materially to the same effect as clause 13 of the Development Agreement in providing that the written terms contained the entire contract between the parties and those terms could only be varied in writing.[68]The trial judge in MWB found that the parties had made an oral agreement, supported by consideration, for a revised schedule of licence payments which varied the terms of their formal licence agreement but held this was ineffective because it was not in writing and did not comply with the requirements of the clause. He held that the claimant was not estopped from resiling from the agreement upon the revised payment schedule because the subsequent payment made by the defendant under it was made on account of the existing arrears (their accrual had prompted the oral variation) and, therefore, did not amount to detrimental conduct. The Supreme Court reversed the decision of the Court of Appeal to the effect that the oral agreement upon the revised payments also amounted to an agreement to dispense with the application of the entire agreement/no oral modification clause. The Supreme Court gave full effect to the parties’ agreement, by that clause, that any such variation needed to be agreed more formally if it was to be valid and enforceable.[69]The Supreme Court’s decision in MWB did not, however, address any potential estoppel which precluded the claimant from relying on the payment schedule under the written licence agreement. Lord Sumption (with whom Baroness Hale, Lord Wilson and Lord Lloyd-Jones agreed) said, at [16], that the minimal steps taken by the defendant were not enough to support any estoppel defences and that “this is not the place to explore the circumstances in which a person can be estopped from relying on a contractual provision laying down conditions for the formal validity of a variation.” Any observations upon an estoppel defence were therefore obiter. Lord Sumption observed “that the scope of estoppel cannot be so broad as to destroy the whole advantage of certainty for which the parties stipulated when they agreed upon terms including the No Oral Modification clause.” In his judgment, at [25] and [31], Lord Briggs recognised there may be cases where an estoppel would prevent reliance upon such a provision, at least in cases where the oral variation called for immediate performance leaving no time to address such contractual formalities.[70]Lord Sumption elaborated upon his observation against any wide-ranging estoppel by expressing himself in terms which (contrary to ZVI Construction) suggest the parties would by their informal agreement upon the variation also have to direct their minds to the term of the contract regulating any formal variation. He said, at [16]:
“At the very least, (i) there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality; and (ii) something more would be required for this purpose than the informal promise itself: see Actionstrength Ltd v International Glass Engineering IN.GL.EN SpA [2003] 2 AC 541, paras 9, 51, per Lord Bingham of Cornhill and Lord Walker of Gestingthorpe.”
[71]Lord Briggs, at [31], referred to the parties having “expressly (or by strictly necessary implication)” agreed to do away with the clause preventing merely oral variations.[72]In Actionstrength, cited by Lord Sumption, what was missing for the purposes of an estoppel precluding reliance upon section 4 of the Statute of Frauds 1677 was an unequivocal representation by the second defendant, as part of its agreement that it would ensure the first defendant paid the claimant, that it would not rely upon the statute. I would note that Lord Sumption’s reference to an ‘unequivocal representation’ about non-reliance upon an entire agreement/no oral modification clause, and Lord Briggs’ reference to such non-reliance either being expressed or strictly and necessarily implied, appear to be in conformity with what was later said by the Supreme Court in Tinkler about the need for any estoppel by convention to be founded upon conduct or words between the parties which “crosses the line” in manifesting an assumption that is at variance with the true legal position.[73]Mr Arumugam relied heavily upon the decision in Barclays Bank Plc v Nylon Capital LLP [2011] EWCA Civ 826; [2012] Bus LR 542 in response to DHHI’s reliance upon ZVI Construction. He submitted that the deputy judge’s conclusion, at paragraph [44] of ZVI Construction, must be read subject to what was said by Thomas LJ (with whom Etherton LJ agreed) and Neuberger LJ in Barclays Bank v Nylon.[74]Barclays Bank v Nylon concerned the question of whether or not Barclays’ proceedings for a declaration that it was under no obligation to pay Nylon should be stayed. Nylon’s case for a stay was on the basis that, under the agreement between them, such a dispute was a matter for determination by an expert who was to be an accountant, was to act as an expert not as an arbitrator, and whose decision was to be final and binding. The Court of Appeal upheld the decision of the judge in refusing a stay. The bank contended that profits earned on its capital investment did not form part of the profit allocation to be decided by the expert. Although the expert determination clause gave the expert jurisdiction to determine any dispute about the interpretation of the agreement or his jurisdiction, the court said it was ultimately for the court to determine the jurisdiction of the expert by reference to that issue (though by the time the Court of Appeal came to hand down their judgment the parties had compromised it). Part of its reasoning was that the wide and generous approach taken by the court in relation to arbitration clauses did not apply to expert determination clauses. Even if the expert determination clause purported to provide otherwise, an expert’s decision as to his jurisdiction could always be challenged in court. It was therefore appropriate for the court to determine the extent of his jurisdiction.[75]As I indicated during the course of counsel’s submissions, the passages in Barclays Bank v Nylon relied upon by Mr Arumugam appear to me to be more relevant to the second question identified above: whether Mr Dykes is able on the present application to impugn the ostensibly final and binding Second Determination on the ground of an error of law within it. The observations in Barclays Bank v Nylon about an error of law on the part of the expert resulting in a decision which, for that reason, falls outside the parties’ contractual mandate seem to me to go to a different point than the question as to what mandate the parties have given the expert to make decisions free from any such errors. The latter is the focus of this first question.[76]On that point, I note that in ZVI Construction, at [43.1], Mr Furst QC mentioned ZVI’s reliance upon Barclays Bank v Nylon for the proposition that “even if ZVI did submit to the jurisdiction of the expert, it is still open to the court to review the expert’s jurisdiction.” (my emphasis through underlining). Likewise, the passages in the judgment of Thomas LJ in Barclays Bank v Nylon relied upon by Mr Arumugam appear under the heading “The mandate of the expert in a dispute within his jurisdiction”. The passages in the judgment of Neuberger LJ, to which he drew my attention, also focus upon the situation where the decision of an expert, to whom the parties have entrusted the task of making a binding determination upon valuation, might be susceptible to challenge in the court on the basis that it rests upon a conclusion of law or contractual interpretation. 77. Therefore, in ZVI Construction, the court mentioned Barclays Bank v Nylon only for the purpose of noting that it is still open to it to review the exercise of an expert’s jurisdiction. On my own review of the Second Determination in this case, I do not find Barclays Bank v Nylon to be of any real assistance in answering the first question. (6) Decision on Question 1[78]Although a structured analysis of DHHI’s application requires this question to be decided first, I have already explained my reason for saying the decision cannot be made in isolation from the second question.[79]Therefore, I should at this point say that if my decision on the second question below had been adverse to Mr Dykes then I would have invited further argument from counsel upon this first question. Although I indicated at the hearing that the reliance upon Maymac touched upon a fairly common aspect of TCC adjudication enforcement, it is only in the course of preparing this judgment that I have come to realise that there are aspects of this question which (given the way the basis for it emerged at the hearing) have required further analysis beyond that applied at the hearing. Most obviously, and even though counsel’s submissions did not really focus upon that part of the decision in ZVI Construction which relied upon the Court of Appeal’s decision in MWB, I would have been assisted by further submissions about the impact of clause 13 of the Development Agreement in the light of the obiter dicta on the estoppel point in the later judgments of the Supreme Court in MWB.[80]Such analysis as appears above in relation to the other TCC cases, Tinkler and MWB is therefore my own without me benefiting from counsel’s submissions upon those decisions or any further related authorities. The court should obviously be very wary of entering the dangerous territory of reaching conclusions that are dispositive of an issue without having the benefit of full argument on the decisive point(s).[81]That said, the authorities addressed above either expressly state or exemplify the point that any finding that Mr Dykes has either waived or is estopped by convention from relying upon the limits of the Expert’s jurisdiction, as set by clause 7.1, must rest upon a close examination of the facts. Observance of the Easyair principles, applicable to DHHI’s summary judgment application, therefore requires me to guard against conducting a “mini-trial” if the facts deserve fuller investigation at a trial. In fact, neither side indicated that the documentary evidence in relation to the Second Determination was somehow deficient or disputed. Whilst reminding myself that the ‘temporary finality’ of adjudicators’ decisions forms a key element of the expedited and robust approach adopted in the TCC on summary judgment applications to enforce such decisions (though my own view is that, given self-contained points of law may be raised by the respondent in opposition, the comparison highlights the need for me to consider the first and second questions together) such points about waivers of a potential challenge to the decision-maker’s jurisdiction are routinely decided at that summary judgment stage. The decisions in Air Design, LJH Paving and LAPP Industries were each given on summary judgment applications.[82]In my judgment, by the Counter-Submission quoted in paragraph 33 above, Mr Dykes stated very clearly his position that the Expert had jurisdiction to make findings ‘B’, ‘C’ and ‘D’. Whether one uses the language of a “crossing of the line” (Tinkler) or, as I think more appropriately on the waiver analysis, an unequivocal representation (MBW), it is difficult to envisage a clearer submission to a presumed jurisdiction wider than that conferred upon the Expert by clause 7.1 of the Development Agreement. Moreover, as already noted, the same Counter-Submission (in relation to ‘E’) made it clear that Mr Dykes was aware of the limits upon the Expert’s jurisdiction set by its language. That only highlights the clarity of his representation in relation to jurisdiction over findings ‘B’, ‘C’ and ‘D’.[83]However, recognising that the observations by Lord Sumption and Lord Briggs in MBW were obiter, it is much less clear to me that the representation (albeit itself made in writing, though unilaterally) can be read as doing away with the no oral modification provision in clause 13. The later observations in MBW mean I should not simply adopt the reasoning in ZVI Construction that it is not necessary to show that the parties’ words or conduct involved them directing their minds to the provision against merely oral modifications to their formal agreement.[84]I have also found the answer to the detrimental reliance/unconscionability question to be less straightforward. In Tinkler, at [28], Lord Burrows said that, wherever possible, the court should seek to clarify what the vague phrase “unconscionability” means in relation to the particular facts in play. This means that for DHHI to succeed on the first question I need to identify a compelling case of unconscionability on the part of Mr Dykes.[85]The judgment in ZVI Construction was given following the final hearing of a Part 8 claim. I therefore infer (and the judgment does not indicate otherwise) that, like this judgment, it was given only by reference to written evidence. The judge in that case noted ZVI’s argument that there was no witness statement to demonstrate either reliance upon the common assumption or detriment. However, he concluded (at [62]-[63]) that both could be inferred from the facts that were before him. He inferred both reliance and detriment from the fact that the defendant had continued with the expert determination and then brought proceedings in Massachussets, in reliance upon the expert determination, which led to an order for the attachment of ZVI’s property.[86]In the present case, the supporting witness statement of Mr Husband does not address the detrimental reliance. That is no doubt because this first question was not anticipated at the time he made it and his focus was upon the second question below.[87]It is not clear to me that such reliance by DHHI upon Mr Dykes’s Counter-Submission, within the expert determination process, can be inferred for the purpose of a summary determination against Mr Dykes. That process ran from 20 January 2023 (the Expert’s appointment) to 17 March 2023 (the date of the Second Determination). The Expert’s summary of the written submissions made to her, at paragraphs 6 to 12 of the Second Determination, confirms that the parties’ last round of submissions were exchanged on 3 March 2023 and that, she having raised the question, they each confirmed that they did not wish to make any further submissions. That said, what the Expert said in the Second Determination (at paragraphs 28, 36 and 50) does indicate that, in its submissions of 3 March 2023, DHHI did engage with Mr Dykes’s earlier submission of 10 February 2023 which assumed and represented that the Expert was competent to make finding ‘D’.[88]Therefore, for the purpose of a decision at the summary judgment stage which is predicated upon an unconscionable repudiation by Mr Dykes of his previously adopted position, it seems to me that it is DHHI’s reliance upon finding ‘D’ in these proceedings that would have to be taken as sufficient detrimental reliance to sustain a finding of unconscionability.[89]I have explained in the introduction above how finding ‘D’ forms the starting point for DHHI’s position in these proceedings that it was entitled to accept Mr Dyke’s repudiatory breach on 22 March 2023. However, it is only the starting point and it is clear that DHHI’s purported acceptance also reflected the challenge to the Second Determination intimated by Dallas & Co’s letter of the previous day. I have also explained (see paragraph 43 above) that the APOC, served on 29 May 2024, reveals that the allegation of a repudiatory breach by Mr Dykes does not end with the earlier date in March 2023 because of DHHI’s position that Mr Dykes never made good on that challenge, at least not before he amended his defence and counterclaim on 15 August 2024.[90]What seems clear to me, therefore, is that any analysis of the detriment allegedly suffered by DHHI in acting on finding ‘D’ in these proceedings must, on its own case, be analysed against the background of Mr Dykes challenging it; albeit that the pleaded challenge has so far been on the basis that it is wrong rather than a nullity.[91]Mr Dykes’s position is that since August 2024 his defence and counterclaim has advanced the challenge first indicated by Dallas & Co on 21 March 2023. This is his presently pleaded defence underpinning the second question below. As DHHI has at all times (including when it purported to terminate the Development Agreement) known that Mr Dykes challenged findings ‘B’, ‘C’. ‘D’ (and ‘F’) on the basis they were wrong and should be set aside, the closely related issues of detrimental reliance and unconscionability cannot in my judgment be addressed in isolation from the answer to the second question.[92]Put shortly, for summary judgment purposes I would find it difficult to conclude that it is plainly unconscionable for Mr Dykes now to resile from his position that the Expert had jurisdiction to decide those matters if he has a real prospect of establishing that what she decided in the exercise of it was unenforceable. Otherwise, a decision against him on this first question would be the first building block in a conclusion that he was in repudiatory breach of the Development Agreement even though his rejection of the Second Determination, which led to DHHI’s purported acceptance, may well have been justified. If justified, he would not have wrongfully repudiated any contractual obligation (of the kind said to have established or recognised by the Second Determination). It is because of this that I have concluded the first question cannot be resolved without knowing the answer to the second.[93]In the light of my decision on the second question, I have decided that Mr Dykes should not be precluded from arguing at trial that the Expert’s findings are a nullity for want of jurisdiction. This decision is reinforced by the need for the parties to address the impact of clause 13 of the Development Agreement on the estoppel/waiver argument in the light of the obiter dicta in MBW. (7) Analysis on Question 2: Final and binding?[94]The second question in paragraph 37 above reflects the way the challenge to the Second Determination was put in Dallas & Co’s letter of 21 March 2023 and is presently expressed in the RAMDC. The ‘final and binding’ language of clause 7.3 of the Development Agreement is not qualified by the words “save in the case of manifest error”, or similar language recognising grounds for a potential challenge on the basis of a mistake by the Expert, and the essential question for me to decide is whether there is scope for such a challenge in the absence of such wording.[95]I have already expressed my view that Mr Arumugam’s reliance upon the decision in Barclays Bank v Nylon seemed better directed to this second question.[96]It is important to note that to be able to answer this second question in favour of Mr Dykes it is sufficient for me to conclude that he has a real prospect of establishing the Expert’s findings were wrong and, therefore, are unenforceable. As with his position on the first question, Mr Dykes is resisting an application for summary judgment, not making one. I do not need to decide at this stage of the proceedings that any of findings ‘B’, ‘C’ or ‘D’ should be set aside. If the proper application of Barclays Bank v Nylon means that the correctness of the Second Determination is susceptible to review by the court, the parties have yet to engage fully with the merits of Mr Dykes’s case (set out at paragraph 72 of the RAMDC) which challenges it. Instead, at this hearing DHHI’s position was that the language of clause 7.3, just noted, meant that Mr Dykes’s position could be shortly dismissed on the basis that it precludes such a review.[97]Mr Arumugam submitted that, putting the point at its lowest, Mr Dykes has a real prospect of establishing that the Expert’s findings ‘B’, ‘C’ and ‘D’ were based on an error of law. He referred to the expert report of Richard O’Brien dated 3 March 2023 which was put before the Expert. Mr O’Brien is the managing director of a City-based insurance broking firm specialising in property and construction insurance. Mr Dykes had relied upon Mr O’Brien’s report in his Counter-Submission to the Expert of that date. Having introduced it and other supporting material, the Counter-Submission said “…. this dispute is concerned with the interpretation of Clauses 18, 21.1(a) and 21.1(b) of the Agreement.”[98]One of the points made in Mr Dykes’s Counter-Submissions was that DHHI was seeking to confine the dispute to clause 18.5, which the Expert addressed, in her finding ‘C’, by interpreting it as not entitling Mr Dykes to see all insurance policy documents since the start of the Development Agreement but only those that “are being maintained.” She therefore accepted DHHI’s competing submission that the only obligation upon it was to produce evidence of the insurance currently in force. Mr Dykes’s position was that this did not cover the full extent of DHHI’s obligations under clause 18 as a whole. He sought to support this position with Mr O’Brien’s report which identified the key risks required to be covered (on an occurrence basis) in any large-scale construction development. His view was that the “on-line package” insurance policy which DHHI showed as having been taken out by DHBL, with £750,000 of cover, on 18 October 2022 did not evidence compliance with clause 18 of the Development Agreement (read as a whole).[99]The RAMDC quotes the full terms of clause 18. Mr Dykes’s case (at paragraph 72) is that, no evidence of insurance cover for any earlier period having been provided by DHHI, the company had failed to comply with its obligation to insure under clause 18.1 both before and after 18 October 2022 and the evidence of insurance cover in the name of DHBL after that date also showed that DHHI was at all times in breach of clause 18.3.[100]Clause 18.1 set out the obligation of the Company “from the date of this Agreement” to insure or procure the insurance of the development, buildings, plant and machinery (including a requirement that this be for not less than the full reinstatement value together with all site clearance and professional fees) and clause 18.3 contained the Company’s obligation (“from the date of this agreement until completion of the Development”) to maintain insurance in respect of death, injury, loss and damage in an amount no less than that previously agreed in writing with Mr Dykes. Clause 18.4 imposed a requirement upon DHHI to require that each member of its ‘Professional Team’ and each ‘Sub-Contractor’ (neither term was defined by the Development Agreement and DHBL’s position as a potential, if informal, sub-contractor of DHHI can therefore only be inferred) maintained PI cover in an amount agreed in writing with Mr Dykes. Clause 18.5 provided that Mr Dykes might at any time request documentary evidence that the required insurance policies “are being maintained”.[101]In the Second Determination the Expert noted Mr Dykes’s submission that DHHI had sought artificially to confine the dispute under clause 18 generally to the obligation under clause 18.5, as well as his argument that the true meaning of that clause was that he was entitled to see evidence of policies satisfying DHHI’s obligation since the date of the Development Agreement. She also noted DHHI’s contention that it had not breached the agreement or, alternatively, should be given the opportunity to remedy it.[102]The Expert found (at ‘A’) that the insurance required by clause 18.1 was not being maintained at the date of Mr Dykes’s request (17 October 2022) but was being maintained from the following working day and was therefore in place when Mr Dykes purported to terminate the Development Agreement. This finding did not expressly engage with Mr O’Brien’s points about the inadequacy of DHBL’s cover from 18 October 2022. Within finding ‘A’, the Expert also found that the insurance required by clauses 18.3 and 18.4 was not being maintained as at the date of Mr Dykes’s request. Finding ‘C’ was that clause 18.5 did not give Mr Dykes an entitlement to see all insurance policy documents since the start of the Development Agreement.[103]The key related findings by the Expert, which Mr Dykes seeks to challenge in these proceedings, are ‘B’ and ‘D’. Finding ‘B’ was that the breaches by DHHI of clauses 18.1, 18.3 and 18.4, identified within finding ‘A’, were not a fundamental breach by DHHI but a substantial breach capable of remedy. The Expert noted that the Development Agreement provided, in the event of his request for evidence of cover not being met, that Mr Dykes could himself put in place the required insurance and recover the cost from DHHI. He had not done so. As I read the finding, that was the way the Expert implicitly addressed the point that DHHI itself had not remedied those substantial breaches by the time Mr Dykes purported to terminate the Agreement. Finding ‘D’ was that Mr Dykes was not entitled to serve notice of termination on 8 November 2022. The Expert said that the breach of clause 18.1 had been remedied with effect from 18 October 2022 and “Mr Dykes did not give DHHI the opportunity to remedy the balance of their breach” when “he should have done so.”[104]Does Mr Dykes have a real prospect of establishing in these proceedings that findings ‘B’ and ‘D’ are vulnerable to being set aside?[105]As noted above, the Court of Appeal in Barclays Bank v Nylon decided that an expert’s decision as to his jurisdiction can always be challenged in court. That was the basis of its conclusion that the court proceedings should not be stayed to allow for the expert determination for which the parties had provided by their agreement. The observations by Thomas LJ and Neuberger LJ were, as Mr Sims KC highlighted, obiter dicta about the impact of an error of law by the expert upon the validity of a decision which it is otherwise within his mandate to make. Their observations were made with the principle laid down in Jones v Sherwood Computer Services Plc [1992] 1 WLR 277, 287, well in in mind. In that case, and the later decisions in Veba Oil Supply & Trading GmbH v Petrotrade Inc [2011] EWCA Civ 1832, [33], and Begum v Hussain [2015] EWCA Civ 717, [8]-[9], relied upon by DHHI, the court emphasised the binding nature of a mistaken decision by an expert which it was within his or her “mandate” to make (absent any language within the clause conferring jurisdiction which expressly recognises the potential for such challenge).[106]Even those dicta involved Thomas LJ (with whom Etherton LJ agreed) saying he would prefer to express no concluded view upon the authorities he had addressed on the point about the mandate of an expert otherwise to reach a wrong decision. Neuberger LJ (with his focus upon an expert valuation) said there was a “powerful argument” for saying that, even where the valuation is final and binding, it can be challenged in court if it can be shown to have been arrived at on the basis of a mistake of law.[107]Mr Sims KC correctly emphasised that this obiter discussion was directed to an error on a pure point of law. Thomas LJ made reference to “an issue which was solely one of law”, “a question of law” and a “pure issue of law” (at [34] and [35]) and Neuberger LJ referring to a “mistake of law” and “an issue of law” (at [63] and [69]).[108]Neuberger LJ, at [70], made reference to the right (albeit “limited and prescribed”) to parties to an arbitration agreement to appeal to the court on points of law under section 69 of the Arbitration Act 1996 (“the AA”). He said it would be surprising if an expert determination could not also be challenged on a point of law when (to summarise) such a determination often involves much less lawyerly input and legal expertise on the part of the decision-maker than many arbitral proceedings do.[109]I think a comparison can also be drawn with the position in relation to enforcement of adjudication decisions made under the HGCRA, so far as the residual jurisdiction of the court on points of law is concerned, though it is only a loose one given the approach of the court to enforcement of adjudication decisions summarised next. Nevertheless, so far as non-judicial determinations of points of law within a dispute resolution process are concerned, it could be said that an adjudication decision is closer to the expert decision-making process that Neuberger LJ was contrasting with arbitrations that often involve legal representations and decision-making by lawyers. The labelling cannot alter the terms of clause 7 of the Development Agreement, which refers to “the relevant umpire acting as an expert”, but I note that the RAMDC refers to both the First Determination and the Second Determination as having been made by “the Adjudicator”.[110]The reference in Maymac (see paragraph 55 above) to making an adjudication, or a decision in an adjudication, which would be binding until the final determination of the dispute reflects the nature of that decision and the approach of the TCC to such summary judgment applications by reference to the principle generally summarised as “pay now and argue later”. On the basis, of course, that the adjudicator did have jurisdiction to make the decision, the TCC recognises that it is ultimately for the court to provide a final decision on any contractual disputes which feed into the state of the final account between the parties, but that does not undermine the ‘temporary finality’ of the adjudicator’s decision as to payment for the purposes of its enforcement. That is the general position in relation to the court’s recognition of the validity of the adjudicator’s decision at the summary judgment stage. However, the court may refuse to enforce the decision if it can be shown that that it is based on an error of law, suitable for determination at that stage, which it would be unconscionable to ignore. See paragraph 9.4.5 of the TCC Guide 2022 which might be said to have some affinity with the “obviously wrong” test for leave to appeal under section 69 of the AA.[111]The essential point under this second question is whether an apparently “final and binding” determination by the Expert is susceptible to the kind of challenge, on a point of law, that might be made to an arbitral decision under section 69 of the AA or in response to a decision in an adjudication made pursuant to the provisions of the HGCRA. This involves considering whether or not Mr Dykes’s challenge is to be categorised as one involving a point of law.[112]Mr Sims KC’s submission was that Mr O’Brien’s report showed that Mr Dykes was attempting to impugn the validity of the Expert’s determination on what was a question of mixed fact and law rather than a point of pure law of the kind discussed in Barclays Bank Plc v Nylon.[113]DHHI’s counsel also referred to the general observations made in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, particularly at [59], about the attractions of non-court-based dispute resolution. They said the points made about the attractions of the various alternatives to court litigation, in terms of lower cost and greater speed, reinforced the need for a restrictive approach to the court’s review of an expert’s mandate.[114]Against that, Mr Arumugam said the Expert’s findings upon the meaning and effect of clause 18 of the Development Agreement, and her finding ‘D’, were clearly questions of law for the purposes of the discussion in Barclays Bank Plc v Nylon.[115]Recognising that their remarks were obiter, in my judgment it is important to note that Thomas LJ, at [33]-[34], and Neuberger LJ, at [68]-[69], expressed their views on the point by relying upon what Hoffmann LJ said in Mercury Communications Ltd v Director General of Telecommunications [1994] CLC 1125, at 1140, in his dissenting judgment in the Court of Appeal where the majority ruling was the reversed by the House of Lords. This was to the effect that, where a decision-maker is entrusted to make a decision in accordance with certain principles, he will exceed his decision-making authority if he gives those principles a wrong meaning (in the judgment of the court) and acts upon that erroneous meaning. Thomas LJ referred to the mandate, which cannot be exceeded through such an error of law, as “including the principles as derived from the contract upon which that determination must be made”. Likewise, Neuberger LJ contemplated the court reviewing, setting aside or amending a decision which reflects an error on an issue of law that the decision-maker is required to resolve.[116]I read those passages in Barclays Bank Plc v Nylon as supporting Mr Dykes’s argument that a misinterpretation by the Expert of clause 18 of the Development Agreement should be categorised as an error of law leading to a conclusion that she has exceeded her mandate to make a final and binding decision with which the court cannot interfere. In Mercury Communications the decision-maker was required to interpret certain phrases which formed part of licence conditions governing the connection of one telecommunications system to another. Those conditions formed part of the criteria governing his decision as to whether there had been a material change of circumstances justifying a change in the terms of the agreement between the parties. In his judgment in the House of Lords, Lord Slynn said: “If the Director misinterprets these phrases and makes a determination on the basis of an incorrect interpretation, he does not do what he was asked to do” and the parties “intended him to deal with such matters and such principles as correctly interpreted. They did not intend him simply to apply such meaning as he himself thought they should bear. His interpretation could therefore be reviewed by the court.”: see [1996] 1 WLR 48, 58H-59A.[117]In my judgment, Mr Dykes does have a real prospect of being able to challenge successfully the Expert’s findings ‘B’ and ‘D’ and, therefore, the Second Determination generally for the purposes of resisting DHHI’s application for summary judgment. I say this on basis that, at its lowest, it is seriously arguably that each of those findings is to be categorised as a point of law for the purposes of the discussion in Barclays Bank Plc v Nylon. The Expert construed clause 18 of the Development Agreement and applied her interpretation to the facts. The challenge to her interpretation and application, mounted in paragraph 72 of the RAMDC, has a real prospect of success.[118]Finding ‘B’ rests upon the correct interpretation of clause 18 of the Development Agreement (as appears from the discussion in relation to finding ‘A’) and the Expert’s categorisation of the breaches by DHHI as remediable rather than fundamental ones. Within that categorisation there appears to me to be a point of law as to whether the existence of the term which provides (and assumes) that Mr Dykes might effect “such insurance” himself precluded him from treating those breaches as repudiatory in nature. As DHHI had not remedied those which persisted after 18 October 2022, that appears to form a large part of the reasoning behind finding ‘D’.[119]Not needing to say more about the arguments for and against at this stage, I consider that last point raises a point of law for review by the court. Likewise, Mr Dykes’s pleaded case that the insurance cover obtained by DHBL from 18 October 2022 still did not comply with clause 18.1 is one that turns on the true interpretation of that clause. Findings ‘A’ and ‘D’ involved the conclusion that the previous breach of clause 18.1 was remedied from that date but neither expressly addressed the language of the clause bearing upon an insurable interest in the full reinstatement value of the development. The effect of clause 18 generally is a matter of legal interpretation. It seems to me that it is open to Mr Dykes to contend that the Expert’s conclusions on these points was legally flawed in a way which resulted in her exceeding the decision-making authority conferred upon her and that there is sufficient merit in the challenge to preclude the grant of summary judgment against him. I emphasise again that the focus of DHHI’s argument to the contrary, on this application, has been upon the Second Determination being final and binding upon the parties, whether or not it was correct. (8) Decision on Question 2[120]Accordingly, in my judgment, Mr Dykes is not precluded from challenging those findings in the Second Determination that are adverse to him by reason of the “final and binding” language of clause 7.3 of the Development Agreement. (9) Question 3[121]As formulated, the third question does not fall to be determined in the light of my conclusions on the first and second questions.[122]At any trial of DHHI’s allegation of repudiatory breach by Mr Dykes the nature of the case formulated in the APOC will require investigation of his actions both before and after the Second Determination, and indeed after DHHI’s purported acceptance of his breach on 22 March 2023. The court’s decision on his challenge to the Second Determination will form a key part of the assessment of DHHI’s allegations of wrongful and repudiatory words and conduct by Mr Dykes. (10) Disposal of DHHI’s Summary Judgment Application[123]I therefore refuse DHHI’s application for summary judgment against Mr Dykes for damages to be assessed.

C. REASONING AND DECISION ON MR BRAUND’S APPLICATION

[124]I have explained in the introduction how, on an application framed as being for the striking out (pursuant to CPR 3.4(2)(a)) alternatively reverse summary judgment on the claim by Mr Dykes and the Arcade Companies seeking an order for an account against Mr Braund, the submissions made on his behalf really reflected the shifting nature of their case against him. Mr Husband’s point about their claim being “unparticularised and vague” was really based upon the ‘quasi-account’ in which the parties had engaged through their solicitors without the court having yet decided whether an account should be ordered and, if so, the basis and scope of it.[125]So far as the pleaded case of Mr Dykes and the Arcade Companies is concerned, it is in my judgment not permissible to conclude at this stage that Mr Braund did not owe the agency relationship which is alleged against him. It is alleged in the RAMDC that Mr Braund had “complete access” to Mr Dykes’s personal bank accounts, including the ability to make payments online, and that he directed Mr Dykes in relation to signing cheques drawn on those accounts and the bank accounts of the Arcade Companies. The payments are alleged to have been made “either to Mr Braund personally, or to companies owned by Mr Braund, or to third parties, in each case supposedly for the purpose of the development of [the Douglas Road Site]”. The allegation is that this agency relationship carried with it an obligation to keep records in respect of payments made and to the extent that Mr Braund cannot show a payment was for the proper purpose of property development, which so far he has not, then he should be held accountable for it.[126]All of this is to be considered in the light of the DoT (and Mr Braund’s apparent trusteeship of the shares in DHHI for Mr Dykes) and, although Mr Braund says he did not use the power for financial purposes, Mr Dykes having appointed Mr Braund as his attorney under a lasting power of attorney in October 2013. Paragraph 34 of the RAMDC pleads the basis of a fiduciary relationship between Mr Dykes and Mr Braund which also includes Mr Braund allegedly assisting Mr Dykes in his tax affairs.[127]Mr Braund does not admit the fiduciary relationship and denies that Mr Dykes reposed complete trust and confidence in him in relation to financial matters. His position is that any agency relationship was limited in scope to him acting on specific instructions from Mr Dykes, rather than involving the exercise of a wide-ranging discretion, and that any acts undertaken by him in that capacity were done with Mr Dykes’s full knowledge and in furtherance of his business interests. Mr Braund says the claim for an account in respect of payments made prior to 15 August 2018 are (so far as it rests upon a relationship of agency) barred by sections 5 and 23 of the Limitation Act 1980. He also relies upon the doctrine of laches when the payments date back to 2017 and Mr Braund was not joined in the proceedings until August 2024.[128]In response to those last points, Mr Dykes relies upon section 21(1)(b) and/or (3) and/or section 32(2) of the Limitation Act 1980. Each of those are alternatives to an argument that Mr Dykes’s cause of action for breach of a contract of agency (in supporting the claim to an account) only accrued in 2022 when Mr Braund caused DHHI to bring its claim. In relation to laches, Mr Dykes meets that defence with what he says is Mr Braund’s own unconscionable conduct in repudiating the fiduciary relationship and the effect of the DoT.[129]In my judgment, these competing cases cannot be determined on paper so as to reach a safe conclusion now that the Account Issue should be resolved against Mr Dykes.[130]On the face of it, DHHI’s application seeks that result in relation to the Account Issue in its entirety but Mr Braund says that the parties’ exchange of spreadsheets shows that Mr Dykes’s challenge to some £4m worth of payments (out of a total in excess of £18m) is statute barred. In my judgment the difficulty in the way of a summary determination also applies to the limitation defence.[131]In the course of Mr Arumugam’s submissions I observed that it was not clearly pleaded that Mr Braund was, for limitation purposes, a trustee from the outset of the impugned payments: see Paragon Finance v D B Thakerar [1999] 1 All ER 400, at 415h-416d. The RAMDC refers to payments “made to either Mr Braund personally, or to companies owned by Mr Braund, or to third parties, in each case supposedly for the development of [the Douglas Road Site]”. Mr Arumugam said he would, if necessary, seek permission to amend his clients’ statement of case to make the case for relying upon section 21 clearer. Although no draft amendment was formulated at the hearing, I consider that Mr Dykes’s presently pleaded response to the limitation/laches defences already raises fact-sensitive issues that need to be tested at a trial.[132]Whether or not facts relevant to any breach of duty by Mr Braund (if any) have been deliberately concealed and whether or not he can be said to have been not just a fiduciary but a trustee, from the outset, of any sums received by him (if any) cannot in my judgment be decided on the present evidence. Neither can Mr Dykes’s argument that the cause of action for section 5 (and, therefore, section 23) purposes only accrued in 2022 be summarily rejected when it is his evidence that , until 2022, he “completely trusted Mr Braund and so I did not think it was necessary at the time for me to ask for an account of everything”.[133]I have some sympathy in the point made on behalf of Mr Braund about the element of vagueness within Mr Dykes’s general challenge which (according to the third and last of the spreadsheets exchanged between the parties) seeks to put the onus on Mr Braund to explain payments in excess of £18m. An obvious question arises as to how such significant expenditure was being viewed and regulated (if at all) before they fell out. The last of the spreadsheets includes the comment on behalf of Mr Dykes “sums not claimed by Alan Dykes at this stage” in relation to a significant number of items but a summary of it and the second spreadsheet in Mr Dykes’s witness statement shows that other payments totalling £444,347 have now been introduced into that last one to reach a final figure of £18,510,176.[134]The spreadsheets indicate that, within that total, over £12m was paid to DHBL (Mr Braund’s company). As I observed at the hearing, on the assumption that a significant element of that total sum relates to the cost of developing the Douglas Road Site, it is striking that the Development Agreement addresses DHHI’s responsibilities in relation to construction only in the most basic terms. Clauses 5.3, 15 and 17 (and indeed clause 18 addressed above in relation to insurance obligations) appear to assume that it is DHHI that would carry out the development, employing sub-contractors, but no contract price for the works was set and no formal construction contract (whichever company was to be the main contractor) was entered into. In the event, it would appear (including from finding ‘A’ in the Second Determination) that it was DHBL which carried out the development.[135]Many of the payments listed in the spreadsheets as having been paid to DHBL were in round sums for significant amounts. Whether or not there might be a basis for interrogating the basis of particular payments received by DHBL, it presently strikes me that a significant element of the total sum questioned by Mr Dykes in the spreadsheet is likely to reflect the inevitable cost of developing the Douglas Road Site so as to produce the agreed financial return for him out of the sale of its residential units. In his witness statement, Mr Dykes says:
“I am aware of DHBL’s involvement in the development of the Kingswood site, however Mr Braund has failed to provide any underlying documents explaining why each of these payments was made.”
[136]However, any sense of sympathy for Mr Braund arising out of the way in which Mr Dykes has developed his position during their informal ‘quasi-account’ cannot be a substitute for a reasoned decision by the court upon the pleaded issues between parties as to whether an account should be directed against Mr Braund and, if so, over what period(s) of time. There needs to be a trial of those issues, the outcome of which will determine the scope of the account (if any).[137]I therefore refuse DHHI’s application for the summary disposal of the claim to an account in favour of Mr Braund. D. REASONING AND DECISION ON THE APPLICATION BY MR DYKES AND THE ARCADE COMPANIES[138]I have explained in the introduction how this application now only involves a decision about whether or not the Trust Issue should be heard as a preliminary issue.[139]At the hearing, each side’s counsel made points that would have been relevant had Mr Dykes not recognised that the first limb of his application could not be pursued in the light of the recent further amendment (on 22 September 2025) of Mr Braund’s reply and counterclaim challenging the validity of the DoT. On behalf of Mr Braund, Mr Sims KC said it is quite extraordinary that Mr Dykes has only thought to contend he is the beneficial owner of DHHI now that the company seeks to pursue him on a damages claim approaching £30m. Counsel referred to the fact that Mr Dykes had recognised DHHI to be “WB’s company” when he was asked by HMRC about the transfer of the Strachan Henshaw Building to DHHI for £1 during the course of a ‘Code of Practice 9’ investigation by HMRC in 2019. They also pointed to a passage in Mr Dykes’s witness statement in which he said the DoT was drafted to protect his interest in the sites but also said “I did not think I owned DHHI at the time [of the Development Agreement] and was completely reliant on WB.”[140]On behalf of Mr Dykes, Mr Arumugam said the documents showed that Mr Braund was heavily involved in the tax investigation of Mr Dykes and indeed they shared the same tax advisor. He referred to a passage in the COP 9 interview notes where Mr Dykes told HMRC that “all will become clearer when HMRC meet Wayne Braund (WB) the following day as he has more knowledge.” Mr Arumugam also produced at the hearing a copy of another Declaration of Trust dated 3 August 2011 (over 6 years before the DoT) by which Mr Dykes declared he was trustee of certain properties in Bristol BS15 and BS16 for himself and Mr Braund as beneficiaries in equal shares. The language of the earlier document is materially the same as that of the DoT. Mr Arumugam said this made a nonsense of Mr Braund’s pleaded case that he signed the DoT as a result of either a unilateral or shared mistake as to its effect, a representation by Mr Dykes or undue influence. Part of Mr Braund’s case is that he signed the DoT as a result of Mr Dykes representing that it would enable him (Mr Dykes) to manage and operate DHHI for the benefit of Mr Braund’s then minor children in the event of anything untoward happening to Mr Braund.[141]Those rival points go to the substantive merits of the issue over the validity and effect of the DoT. The question for me on the alternative limb of Mr Dykes’s application is instead a matter of case management as to whether the Trust Issue should be tried as a preliminary one before the trial of other issues between the parties.[142]The decision is quite finely balanced. Without knowing what principles of UAE company law might be relevant to such matters of internal management, I accept that there seems to be a real prospect that Mr Dykes would (as his application notice contemplates) be able to bring an end to DHHI’s claim against him if he succeeds on the Trust Issue. He seeks as relief under the RAMDC an order that Mr Braund transfers the shares in DHHI to him. If he obtains it then he would gain control of the company’s board and, with that control, the ability on the face of things to curtail the £30m damages claim against him. The idea that a significant element of the dispute between the parties (including Mr Dykes’s challenge to the Second Determination addressed above as an element of that claim) might not need to be decided by the court to some extent chimes with the alternative stance adopted by Mr Braund’s counsel on his own application; that the Accounts Issue should be stayed until Mr Dykes has formulated his position on the impugned payments with greater clarity.[143]However, when contemplating any direction for the trial of a preliminary issue the court must be mindful of the risk of having created what is sometimes described as a dangerous shortcut. By that I mean most obviously the danger that hindsight reveals that a trial of a preliminary issue did not involve the most efficient deployment of judicial resources, in disposing of the entire litigation between the parties, or result in any significant saving in their overall litigation effort and attendant legal costs.[144]I have decided that there is too much risk of that kind in a preliminary trial of the Trust Issue. In weighing it up, I must obviously bear in mind that Mr Braund’s position is that Mr Dykes will fail on the Trust Issue. In that regard, his counsel have made the point that determination of the Trust Issue will involve significant issues of disputed fact which, they say, are likely to involve defences of laches and estoppel of the kind that will be raised by Mr Braund on the Account Issue.[145]In the event that Mr Braund succeeds on the Trust Issue, the damages claim by DHHI will continue alongside what I should assume will in any event (i.e. regardless of who owns DHHI) be Mr Dykes’s pursuit of the Account Issue. Mr Arumugam submitted that the determination of the beneficial ownership of DHHI was a necessary precursor to the determination of the other issues in the case but that is not the case in relation to the Account Issue, where matters beyond the DoT are relied upon in support of the alleged breaches of fiduciary duty by Mr Dykes and he is complaining about the misuse of his own monies (and those of the Arcade Companies) rather than DHHI’s.[146]I make that point about the Account Issue proceeding regardless whilst recognising that, if Mr Dykes succeeds on the Trust Issue, there may be scope for the Account Issue to be narrowed. I have already touched upon the likely need within the Account Issue for the parties to address their minds further to the point that the development of the Douglas Road Site under the Development Agreement was presumably to come at some significant cost to Mr Dykes as the (presumed) ‘employer’ and to DHHI if it engaged DHBL to do the work. Regardless of the degree of control enjoyed by Mr Braund over Mr Dykes’s monies, I do not know whether Mr Dykes was kept informed of the ongoing development costs in the way that clause 15.6 of the agreement perhaps envisaged. Whether or not he was, the exchange of the parties’ spreadsheets indicates to me that Mr Dykes needs to give further focus to the Account Issue both on that point as well as the potential impact of Paragon Finance so far as Mr Braund is said to be accountable for payments made not to him personally but to limited companies under his control.[147]In deciding against a preliminary trial of the Trust Issue I am also mindful of the lack of progress in this litigation since the claim was issued by DHHI back in May 2022. Much of the delay since appears to be referable to the significant amendments made to each side’s pleaded case, including by reference to the supervening Second Determination. The present applications resulted in the CCMC in the case being adjourned on 4 March 2025 for a fourth time (I think). I note that it has taken 9 months for these two applications to be listed for hearing, during which time there have been further amendments by Mr Braund. Indeed, it is those amendments by him which have provided greater focus to the Trust Issue. The competing applications were aimed at moving matters forward, so far as determination of key issues of liability within the proceedings were concerned, but this judgment confirms that each was unduly ambitious, so further time has been lost in a case which requires investigation of events going back more than 10 years.[148]The hearing of the two applications has highlighted to me the need for a full investigation of the business relationship between Mr Dykes and Mr Braund, over that period of time, and the legal consequences of it since having broken down. The basis of their relationship appears to be largely undocumented and, in relation to the Douglas Road Site, there are quite fundamental arguments about the meaning and effect of the documents (the DoT and the Development Agreement) that do exist. This makes it all the more obvious that their rival positions need to be tested by cross-examination at trial. In my judgment the lack of progress over a period of over three years is a strong reason for the court now to set a strict timetable to ensure that all issues of liability (including Mr Dykes’s alleged repudiatory breach and his own case for seeking an account against Mr Braund) are tried as soon as practicable. I say that even though any consequential ‘quantum’ issues – whether on the taking of an account or an assessment of damages within parameters set by any findings of liability - will fall to be determined at a later stage. E. DISPOSAL[149]I therefore refuse the relief sought by either of the applications before me. However, I do repeat the point just made that further case management directions should be made which are directed to a trial of the questions of liability (but not the extent of any liability in terms of a decision on quantum whether in terms of damages and/or equitable accounting) that are relevant to the issues identified by me in very broad terms in paragraph 3 above.[150]Under paragraph 8 of the order of District Judge Wales dated 4 March 2025 the CCMC is to be re-listed for hearing before him on the first available date from early January 2026. I expect the parties to arrange that listing as soon as possible after the circulation of this draft judgment (on 19 December 2025) and to liaise with one another in advance of that CCMC over the form of language which appropriately identifies the scope of the trial of liability.[151]So far as concerns the order to be made by me on the two applications, I invite the parties to reach agreement upon the costs consequences and to submit a minute of order accordingly, failing which I will direct a short remote hearing to decide them. If directed, that hearing will be combined with any hearing that may be required on the question of permission to appeal.[152]This judgment will be handed down remotely, without the attendance of the parties, and the handing down will be adjourned solely for the purpose of preserving the time for filing an appellant’s notice in accordance with CPR 52.12. If either party wishes to seek permission to appeal then draft grounds of appeal should be filed and served by 4pm on 19 January 2026 and I will direct a short remote hearing to decide the question of permission. I will make provision in relation to the time for filing any appellant’s notice in the order reflecting the outcome of the further hearing.