Clerkenwell Lifestyle (UK) Limited v HG Construction Limited [2026] EWHC 1406 (TCC)

[2026] EWHC 1406 (TCC)Case No HT-2026-000051
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 12/06/2026
Before
MRS JUSTICE JEFFORD
Between
CLERKENWELL LIFESTYLE (UK) LIMITEDClaimantHG CONSTRUCTION LIMITEDDefendantCLERKENWELL LIFESTYLE (UK) LIMITED Part 7 Claimant/ Part 8 Defendant- and –HG CONSTRUCTION LIMITED Part 7 Defendant/ Part 8 Claimant
Mathias Cheung (instructed by Trowers and Hamlins LLP) for Clerkenwell (Lifestyle) UK Ltd.David R Parratt KC (Scot) and Rob Dawson (instructed by Bexley Beaumont Ltd.) for HG Construction Ltd.Hearing Hearing date: 7 May 2026
Judgment ApprovedThis judgment was handed down remotely at 10.30am on Friday 12 th June 2026by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The proceedings

[1]This matter concerns the application of the claimant in the Part 7 proceedings, Clerkenwell, to enforce a Decision of the Adjudicator, Matthew Molloy, dated 5 January 2026, by way of summary judgment. The defendant (“HG”) had issued a Part 8 claim seeking various declarations. These included a declaration that the Decision was reached in excess of jurisdiction and in breach of natural justice and was, therefore, unenforceable, and a declaration that there was a binding agreement between the parties as a result of e-mail correspondence on 8 February 2023. It is HG’s case that the effect of that agreement was to revise the contractual completion dates; that the Adjudicator failed to take account of those revised dates; and that his Decision, therefore, contains an error of law such that it should not be enforced.[2]HG’s position was that the Part 8 proceedings raised an issue which was suitable for consideration by the court at the same time as the Part 7 enforcement proceedings following the principles set out in Hutton Construction Ltd v WilsonProperties (London) Ltd. [2017] EWHC 517 (TCC), as reflected in the TCC Users’ Guide at paragraph 9.4 and as affirmed by the Court of Appeal in A&V Building Solutions Ltd v J&B Hopkins Ltd [2023] EWCA Civ 1418. Constable J gave directions on 6 March 2026. He recited a joint letter from the parties asking for the Part 7 and Part 8 proceedings to be listed together and gave directions listing them together. At the hearing before me, some arguments were still advanced as to whether the Part 8 proceedings fell within the relevant guidance and ought to be determined on a Part 8 basis at the same time as the Part 7 enforcement proceedings. Broadly speaking, these actions having been listed together, no such further issues ought to arise and, as I shall come to, the way in which HG’s case was put was properly restricted to the determination of an issue that arose on the basis of a limited number of documents. To the extent that any issues do arise, it is convenient to deal with them in the course of this judgment rather than as a discrete matter.

The background

[3]The underlying dispute arises out of the design and construction of a new 153 room hotel (“the Hotel Works”) and 9 new build affordable apartments (“the Residential Works”) in Clerkenwell, London, together “the Works”. The contract for the Works was entered into between Clerkenwell as Employer and HG as Contractor on 22 December 2021 on an amended JCT Design and Build Contract 2016 (“the Contract”).

The Contract

[4]Under the Contract, the Date for Completion of the Works or of a Section is defined as that stated in the Contract Particulars or such other date as is fixed either under clause 2.25 or by a Pre-agreed Adjustment.[5]In the Contract Particulars, as amended by a Supplemental Agreement dated 11 January 2022, the Residential Works were designated as Section 1 with a date for completion of 10 May 2023 and the Hotel Works were Section 2 with a date for completion of 20 June 2023.[6]Although in the form of a letter, the Supplemental Agreement was in formal terms. It set out the agreement to vary the dates in the Contract Particulars and it provided for a release by the Contractor of any claims arising out of the carrying out of the Works up to the date of the Supplemental Agreement including any claims arising out of the adjustment of the Date for Completion of the Hotel Works. It was signed by both parties and stated to be executed as a deed.[7]Under Article 3 of the Contract, the Employer’s Agent was named as Avison Young (“AY”). Article 3 provided:
“…Save to the extent that the Employer may otherwise specify by notice to the Contractor, the Employer’s Agent shall have full authority to receive and issue applications, consents, instructions, notices, requests or statements and otherwise to act for the Employer under any of the Conditions.”
Robert Harper of AY was the relevant representative.[8]Clause 2.25 of the Contract contains the following: (i) Clause 2.25.1:
“If on receiving a notice and particulars under clause 2.24: .1 any of the events which are stated to be a cause of delay is a Relevant Event; and .2 completion of the Works or of any Section is likely to be delayed thereby beyond the relevant Completion Date, then, save where these Conditions expressly provide otherwise, the Employer shall give an extension of time by fixing such later date as the Completion Date for the Works or Section as he then estimates to be fair and reasonable. (ii) Clause 2.25.3: “The Employer shall in his decision state: .1 the extension of time that he has attributed to each Relevant Event; and .2 (in the case of a decision under clause 2.25.4 or 2.25.5) the reduction in time that he has attributed to each Relevant Omission.” .1 the extension of time that he has attributed to each Relevant Event; and (iii) Clause 2.25.4 provides for the Employer to fix a Completion Date earlier than a previously extended date either by operation of clause 2.25.1 or by Pre-agreed Adjustment if fair and reasonable and if a consequence of a Relevant Omission. (iv) Clause 2.25.5 then provides as follows: “After the Completion Date for the Works or for a Section, if this occurs before the date of practical completion, the Employer may, and not later than the expiry of 12 weeks after the date of practical completion shall, by notice to the Contractor, giving the details referred to in clause 2ꞏ25ꞏ3: ꞏ1 fix a Completion Date for the Works or for the Section later than that previously fixed if it is fair and reasonable having regard to any Relevant Events, whether on reviewing a previous decision or otherwise and whether or not the Relevant Event has been specifically notified by the Contractor under clause 2ꞏ24ꞏ1; or ꞏ2 subject to clauses 2ꞏ25ꞏ6ꞏ3 and 2ꞏ25ꞏ6ꞏ4, fix a Completion Date earlier than that previously fixed if that is fair and reasonable having regard to any instructions for Relevant Omissions issued after the last occasion on which a new Completion Date was fixed for the Works or Section; or ꞏ3 confirm the Completion Date previously fixed.” ꞏ3 confirm the Completion Date previously fixed.”

.1 the extension of time that he has attributed to each Relevant Event; and

[9]The Relevant Events are defined in clause 2.26.[10]The parties also entered into a separate contract for the refurbishment of a building known as Ragged School to provide over 25,000 square feet of office space, including the demolition of an existing extension and construction of a new extension. That contract was referred to as the Office Contract. The Office Contract is not itself material to these proceedings but explains some of the references in the correspondence between the parties.

Background facts

[11]Mr Harper provided a witness statement in the Part 8 proceedings in which he explained that at various times during 2022, HG reported, primarily through monthly progress reports, delays to the Works. The main causes of delay were said to be a Covid outbreak, below ground obstructions, transport strikes, inclement weather and material sourcing/ delivery. His evidence was that discussions took place with HG and that HG thought that they could mitigate the delays. However, HG later initiated discussions, as he put it, regarding an extension of time of 12 weeks. Mr Harper said that his own view was that it would be difficult for HG to establish an entitlement to an extension of time of 12 weeks, not least because the below ground obstructions and material delivery issues were not Relevant Events. Mr Harper nonetheless discussed the matter with Clerkenwell – principally a director, Simon Banks – and Clerkenwell eventually agreed to grant an extension of time of 12 weeks.[12]On 7 December 2022, Mr Harper emailed HG, with James Watters of HG copied in amongst others. The email started by saying that it was an update on the “two Extensions of Time”. The bulk of the email was concerned with the Office Contract. It concluded under the heading “Hotel Contract” with:
“As previously discussed, a 12 week EOT has been agreed with the client. I understand James is drafting a letter to formalise your request (including the proposed section completion date for the residential), so we will issue the EOT once received.”
[13]On 8 December 2022, by letter to AY as Employer’s Agent, HG (James Watters) informed AY that they had encountered delays due to issues beyond their control and said:
“These issues are predominantly centred around a covid outbreak on site, ongoing transport strikes, inclement weather and issues with material sourcing/ delivery.”
HG requested an extension of time of 12 weeks and said:
“Should this request be granted there would be a revised Practical Completion date for the hotel 15th September 2023 and for the Affordable 18th August 2023.”
[14]The letter itself started by saying that it was written with reference to clause 4.21.1 of the Contract. That clause specifies Relevant Matters which may give rise to a claim for direct loss and expense under clause 4.19 where the regular progress of the Works has been materially affected by a Relevant Matter. The Relevant Matters overlap with, but are not identical to, the Relevant Events which may give rise to an extension of time – for example exceptionally adverse weather conditions and strikes are not Relevant Matters. Although the reference to this clause of the Contract, therefore, seems to have been an error, it nonetheless makes clear that the letter is written in respect of a contractual entitlement.[15]On 1 February 2023, Mr Harper emailed Mr Purkiss at HG stating that the email followed his email of 7 December 2022 and their conversation on 25 February 2023 and that:
“I have now spoken to the client and have approval to put forward the following proposal in relation to the on-going Party Walls matters and your two Extension of Time requests.”
It is unnecessary to set out the proposals that followed in full but some concerned the Party Wall addendum award.[16]That was followed by the email exchange on 8 February 2023 the proposals in which repeated Mr Harper’s email of 8 February 2023 with one addition. The email was in the following terms:
“Following our conversation regarding a target date for completion of the addendum PW Award, I have discussed this with Simon and he in in agreement. Therefore the final proposals for the EOTs is as follows (amendment in red): 1. The additional Party Walls fees incurred as a result of the delay removing scaffold from Camden Laneway have been paid by the client in the sum of £57,145. These costs will be split between HG and CLUK (£28,572.50 each). 2. We understand there will be additional costs associated with reinstating the scaffolding on a date yet to be confirmed. You suggested this will cost in the region of £40k. The client is prepared to split these costs with you, up to a maximum of £20k and subject to Exigere’s assessment and agreement of the final sum. 3. It is acknowledged that there will be an impact on the office progress if HG need to cantilever the scaffold from 1st floor, as per the attached sketch. Therefore, the client agrees in principles to awarding a further EOT once the addendum award is agreed and full impact of the programme has been assessed by HG and AY. 4. HG agreed that there will be no loss and expenses claim for the EOT in relation to item 3 above, subject to the addendum award being in pace by 17 March 2023. 5. HG also agree (as verbally advised previously) that there will be no loss and expense claim for the current 10 week EOT requested for the office contract. 6. Any EOTs issued incorporate all landlord and tenant variation requests issued to date. Furthermore the contractual external repair works to the office will not be subject to an EOT. In consideration of the above, we will issue the following EOTs: • Hotel Contract – 12 weeks. Revised PC date of 12 September 2023. Section completion of the Affordable housing will be changed to 15 August 2023 (ie. 4 weeks prior to PC) • Office Contract – 10 weeks. Revised PC date of 28 April. Note: Doesn’t currently include any delay as a result of the scaffold/ Party Wall addendum as this will be issued separately once the full extent has been established. We trust the above is acceptable and would appreciate a prompt response in order that we can issue the formal paperwork this week. Please call if you would like to discuss further.” • Hotel Contract – 12 weeks. Revised PC date of 12 September 2023. Section completion of the Affordable housing will be changed to 15 August 2023 (ie. 4 weeks prior to PC) • Office Contract – 10 weeks. Revised PC date of 28 April. Note: Doesn’t currently include any delay as a result of the scaffold/ Party Wall addendum as this will be issued separately once the full extent has been established. Please call if you would like to discuss further.”
[17]Mr Purkiss replied the same day saying “Thanks for issuing and I can confirm agreement.”[18]Then on 9 February 2023, Mr Harper wrote to Mr Watters at HG enclosing a Notification of Extension of Time:(i) The letter referred to HG’s letter dated 8 December 2022 requesting an extension of time.(ii) The letter said:
“Having assessed your request and in accordance with clause 2.25 of the Building Contract, we hereby grant an Extension of Time for a period of 12 weeks.” (iii) The letter stated that the extension was granted having due regard to two Relevant Events – exceptionally adverse weather condition (clause 2.26.8) and strikes (clause 2.26.11). (iv) The letter identified the new completion dates of 15 August 2023 for the Residential Works and 12 September 2023 for the Hotel Works. (v) The letter concluded: “This Extension of Time has been issued subject to the terms of our email dated 8 February 2023, which were accepted by HG Construction on the same date. A copy of this email is enclosed.”
[19]The enclosed Notification of Extension of Time (in standard form for use with the JCT Design and Build Contract 2016 Edition) gave notice that the completion date for each section had been fixed at a new date later than that previously fixed and stated that the revision had taken into account the two Relevant Events.[20]On 5 June 2023 HG made a further application for an extension of time by reason of strike action and further extensions of time were granted on 27 September 2023 taking the dates for sectional completion to 24 August 2023 for the Residential Works (Section 1) and 21 September 2023 for the Hotel Works (Section 2).[21]The works were certified as practically complete on 17 October 2024 (Section 2) and 21 February 2025 (Section 1).[22]In the meantime, on 17 July 2024, the Employer’s Agent issued a non-completion notice under clause 2.28 of the Contract and, on 22 July 2024, a notice under clause 2.29.1.2, that Clerkenwell would require payment of or withhold or deduct liquidated damages. Between July 2024 and February 2025, Clerkenwell then issued pay less notices which resulted in the withholding of £500,230 in liquidated damages.[23]In November 2024 a further notice was issued by AY requiring HG to pay further liquidated damages in the sum of £1,161,770. This was disputed by HG on the grounds that it was entitled to further extensions of time relying on alleged Relevant Events including the impact of Covid; design changes to Bedroom Type E; changes to the ground floor high-level ductwork; late installation and availability of power caused by UKPN; changes to the Works relating to the installation of an electric boiler and associated plant room redesign and enabling works; and delay in certifying practical completion caused by the surveyors acting on behalf of the housing association. These matters had been the subject of previous requests for extensions of time.[24]That led to Clerkenwell commencing an adjudication by Notice dated 14 November 2025. In the adjudication and based on the dates of sectional completion, Clerkenwell claimed to be entitled to a further £1,127,372 as liquidated damages.

The adjudication

[25]Given the nature of the disputes that arise in these proceedings, it is necessary to set out in some detail the history of the adjudication.[26]The Notice of Adjudication set out the dispute to be referred as follows: 4 The Dispute in summary4.1 The Dispute between the parties concerns the delays caused to the completion of the Residential Section and Hotel Section by HG and Clerkenwell's entitlement to payment of liquidated damages from HG pursuant to clause 2.29 of the Contract.4.2 HG has been awarded an EOT for the Residential Section to 24 August 2023 and for the Hotel Section to 21 September 2023. Practical Completion was achieved for the Residential Section on 21 February 2025 and for the Hotel Section on 17 October 2024. HG is not entitled to any additional EOT.4.3 Having complied with clauses 2.28 and 2.29 of the Contract, Clerkenwell is entitled to recover liquidated damages from HG in the sum of £1,161,770 as a debt from HG, as calculated in accordance with the terms of the Contract.4.4 HG disagrees and considers itself entitled to a longer EOT than has previously been awarded and does not agree that Clerkenwell is entitled to payment of liquidated damages in the sum claimed.”[27]Clerkenwell sought declarations as to the completion date and the amount and payment of liquidated damages from HG. In respect of the former, the declaration sought was that:
“the correct revised completion date for the Residential Section is 24 August 2023 and for the Hotel Section is 21 September 2023 in line with AY's Notification of Extension of Time issued 27 September 2023, or such other date as the Adjudicator reasonably determines.”
[28]The Referral Notice repeated the above description of the dispute with paragraphs 5.1 to 5.4 of the Referral Notice repeating the paragraphs 4.1 to 4.4 as set out above. The contractual provisions relating to extensions of time were set out and the factual background summarised above was set out. That section of the Referral Notice included the following:
“8.6 Following proper consideration, on 9 February 2023 (Tab-06) AY awarded HG an EOT in respect of what it considered to be Exceptionally Adverse Weather Conditions and Strike action – both being potential Relevant Events under clauses 2.26.8 and clause 2.26.11 of the Contract respectively. 8.7 Accordingly, the Completion Date for the Residential Section was extended from 10 May to 15 August 2023 and for the Hotel Section from 20 June 2023 to 12 September 2023. …”
[29]The further extension of time granted was then set out and at paragraph 8.12 Clerkenwell said:
“As explained in the detailed delay analysis performed by Secretariat for both the Residential and Hotel Sections (Tab 03 & Tab 04), AY has significantly over-awarded HG EOT on the Project and HG has thereby avoided being liable for additional LADs that it should otherwise have been liable to pay the Employer. The Employer does not seek to reverse these EOT awards and respects the decisions made by AY in this regard.”
[30]Clerkenwell said that it had instructed Oliver Barnes of Secretariat to carry out a delay analysis and assess the extension of time to which HG was entitled. The Referral focussed on his analysis of the later alleged Relevant Events (described as the UKPN and boiler event and the Building Control Event) as the matters principally relied on by HG for claiming to be entitled to extensions of time additional to those already granted.[31]From Mr Barnes report it is clear that he had started from a baseline programme to the original sectional Completion Dates. That baseline programme was HG’s programme dated 5 October 2021 against which HG had reported. Mr Barnes had then undertaken an analysis of the critical path and made his own assessment of the causes of delay by a Windows analysis. There were 25 Windows starting in September 2021 and he had, therefore, considered the causes of delay prior to the making of the application for an extension of time in December 2022 and the grant of an extension of time in February 2023.[32]HG’s Response was served on 5 December 2025. A section of the Response responded to the Referral in pleading style:(i) Paragraph5.1 was admitted. Save that it was denied that HG had been awarded significantly more EOT than it was entitled to. Paragraph5.2 was admitted. Paragraph5.3 was denied and paragraph5.4 was admitted. There, therefore, appeared to be no issue as to the scope of the dispute referred to adjudication.(ii) Paragraph 8.6 of the Referral was admitted.(iii) At paragraphs 216 and 217 of the Response, HG said:
“216. Clerkenwell, however, confirm at paragraph 8.12 as follows: “The Employer does not seek to reverse these EOT awards and respects the decisions made by AY in this regard.” 217. It follows that, respectfully, the Adjudicator must similarly accept the awards made by AY reflect the delays caused by exceptionally Adverse Weather Conditions and Strike.”
[33]Starting at paragraph 8 of the Response was a section headed “What is the Scope of Works Within Each Section”.(i) HG contended that the division of the works between Sections 1 and 2 was inadequate. HG set out the background as to why there were differing completion dates for the sections and difficulties raised by what was within the Sections.(ii) This section of the Response continued: “27. Recognising the need for Section 1 to be completed prior to Section 2, in its first award of extension of time dated 09 February 2023, AY awarded an extension for Section 1 to 15 August 2023, whilst for Section 2 the award was to 12 September 2023. 28. The said extension of time was agreed over the course of a number of emails concluding in an email issued by AY to HG on 08 February 2023 (the award of extension of time being issued the following day) as follows [emphasis added]: …” 29. As AY confirm in its above email, there was a requirement that Section 1 be complete four weeks prior to Section 2/Practical Completion of the Works. Further, practical completion of the Works would be achieved upon Section 2 being practically complete.”(iii) Paragraph 28 quoted the letter of 8 February 2023 as set out above. The “emphasis added” referred to a passage in bold namely: “Hotel Contract – 12 weeks. Revised PC date of 12 September 2023. Section completion of the Affordable housing will be changed to 15 August 2023 (i.e. 4 weeks prior to PC)”(iv) Thus far in the Response that was the extent of reliance on any agreement of the extension of time that had been granted in February 2023.[34]HG then argued that the changes to the sections had resulted in time and damages being at large.[35]Under the heading “Entitlement to Extension of Time”, HG then said:
“71. HG asserts that it is entitled to further award of extension of time. 72. As further particularised in the Witness Statement of Mr. Chris Martin, HG and AY on behalf of the Employer entered into discussion in seeking to reach agreement on HG’s entitlement to extension of time. 73. As Mr. Martin explains, it was his view that an agreement was reached with AY that HG would be awarded an extension of time for both Sections until April 2024. 74. Unfortunately, however, it is understood that on the advice of the lawyers for the Employer, AY was instructed not to award any further extension of time. 75. At paragraph 8.13 of the Referral, Clerkenwell acknowledges that HG has sought extensions of time for two events being as follows: i. UKPN Event relating to the installation of an electric boiler and associated plant room redesign and enabling works, which the Employer accepts is a Change to the Works (UKPN/Boiler Event); and iii (sic). an EOT for the period "between the 9 August 2024 and the actual Completion Date, whenever that is granted" on the basis that Building Control had confirmed they would be issuing a Building Control Final Certificate (Building Control Event). 76. As to the Building Control Event this relates to delays to practical completion due to, as HG asserts, delays caused by the requirements of Fairheat (Fairheat Event). 77. HG asserts, however, that there are two further delay events for which it [is] entitled to extensions of time as further particularised below.”
[36]It is not entirely clear what the two events were but, under the heading “HG’s Further Entitlement to Extensions of Time”, the Response went on to address(i) the interrelationship between Sections 1 and 2;(ii) the “Re-Sequencing Event”;(iii) “Delay to Piling – Covid Event”;(iv) “Bedroom Type E Design Changes Event”;(v) “GF High Level Ductwork Event”;(vi) the “UKPN and boiler event”; and(vii) the Fairheat Event. The delaying events considered were essentially the same as those considered by Mr Barnes including the Covid event which Mr Barnes had addressed in his Window 3 from 26 November 2021 to 28 January 2022.[37]HG sought 16 declarations from the Adjudicator. These included declarations that time was at large and, in the alternative, extensions of time for each of the delaying events relied on at (iii) to (vii) above which were sought in terms of specific numbers of days or such other period as the Adjudicator shall decide.[38]For its case on these extensions of time, HG relied on the report of Alastair Anderson of HKA.[39]Mr Anderson set out his Instructions as follows: “1.4 I have been instructed by HG Construction (HGC) to provide independent expert advice on programming and delay matters arising form the ongoing adjudication proceedings (“Adjudication”), between Clerkenwell Lifestyle (UK) Ltd (CLUK) (“the Employer”) in relation to the design and construct of a new build 153nr key hotel and 9nr new build affordable apartments at 18 Vine Hill, 15-29 Eyre Street Hill, Clerkenwell, London, EC1R 5LB (the “Project”). 1.5 In particular, I am instructed, in my capacity as an independent, party appointed expert, to provide a response to the delay reports for the Hotel and Residential Sections, included in the Referral.” “Project”).[40]Under the heading “Extension of Times”, Mr Anderson recited the award of an extension of time for the Hotel Section dated 9 February 2023 and the Relevant Events on which it was based. He referred to and set out paragraphs 3 to 6 of what he called the covering email although what he was referring to was the paragraphs in the letter of 8 February 2023. He then said at paragraph 1.18:
“I have not found the detail of the landlord or tenant variations referred to in item 6. The Extension seems to be drawing a line in the sand for all issues prior to 9 February 2023.”
[41]Mr Anderson then carried out his own Windows analysis using, as the baseline programme, HG’s programme Vine Hill - Hotel & Affordable Contract Programme - Rev10 - 05-10-21 which he said was the first schedule showing the Contractor’s planned intent for implementationof each Section. This was the same programme as considered by Mr Barnes. Mr Anderson also undertook an analysis of the critical path. For the Residential Section, his analysis used 7 windows from 27 September 2021 to 21 February 2025. For the Hotel Section, he used 6 windows from 27 September 2021 to 17 October 2024. In each case one of the early causes of delay was delay to the piling. This delay was, on HG’s case, directly caused by a Covid outbreak on a previous site.[42]Mr Anderson also included in his report a detailed consideration of and response to Mr Barnes’ analysis.[43]I observe at this point that there was nothing in the report to reflect that Mr Anderson’s instructions were that there was a binding agreement as to revised completion dates. Beyond his reference to a line in the sand, there was similarly nothing to suggest that his instructions were that the extension of time given on 9 February was immutable or that all he was concerned with were further extensions of time to those extended dates and his analysis did not proceed on such a basis.[44]Clerkenwell served its Reply on 12 December 2025. HG served its Rejoinder on 16 December 2025. On 17 December 2025, the Adjudicator held a meeting online with representatives of the parties and the experts. In the email of 7 January 2026 referred to below, Mr Philpot said that, at this meeting, the experts “presented the shared agreement on Baseline Dates for each Section and the Baseline Programme”.[45]The Adjudicator’s decision was issued on 5 January 2026.[46]At paragraph 3 the Adjudicator identified the dispute as concerning HG’s entitlement to an extension of time and Clerkenwell’s entitlement to liquidated damages. Clerkenwell, he said, contended that the extension of time granted by AY in its notification dated 27 September 2023 was correct while HG claimed to be entitled to further extensions of time. He addressed and rejected the argument that time was at large and proceeded to consider the appropriate extensions of time by reference to the expert evidence.[47]The Adjudicator’s conclusions were set out at paragraphs 48 and 49. These included an extension of time for the so-called COVID event. He decided that the revised completion date for the Residential Works, Section 1, should be 12 November 2023 and for the Hotel Works, Section 2, 21 October 2023.[48]This was followed on 6 January 2026 by submissions from HG which were entitled “Submission on slip and its correction”. Somewhat remarkably for a request for a correction under the slip rule, this submission ran to nearly 15 pages and is only summarised below:(i) HG quoted from paragraph 8 of the Referral and asserted that Clerkenwell made it clear that it did not seek to open up the extension of time granted by AY for exceptionally adverse weather and strike action.(ii) At paragraph 5, HG noted that in both the Notice of Adjudication and the Referral, Clerkenwell asserted that the correct revised completion date was that granted by the extension of time issued on 27 September 2023.(iii) HG then submitted, at paragraph 6: “AY’s Notification of Extensions of Time were pursuant to a settlement agreement reached by the Parties as is evidenced by the e-mail chain appended to the award when issued...”(iv) HG referred to the email from AY to HG on 7 December 2022; the email dated 1 December 2022; and the exchange of emails on 8 February 2023.(v) Paragraph 7 stated: “HG by its e-mail of the 8th confirmed its acceptance and hence a binding agreement was reached. It follows that AY’s Notification of Extensions of time were issued pursuant to a binding agreement reached by the Parties for good consideration.”(vi) The contention that there was a binding agreement was subsequently repeated.(vii) HG went on to argue that since Clerkenwell had not mentioned the exceptionally adverse weather event or the strike action and had only addressed in detail the “further EOT requests”, the only dispute referred to adjudication was HG's entitlement to an extension of time in relation to the UKPN event, the boiler event and the Building Control event. HG advanced various arguments to the effect that that was reflected in the Adjudicator’s decision.[49]At paragraph 39, HG argued that the periods of extensions of time to which the Adjudicator had decided HG was entitled should be added to the revised dates for completion, that is, the dates agreed on 8 February 2023.[50]HG then said:
“41. The Adjudicator was not tasked with deciding upon, nor did he decide, nor would he have jurisdiction to decide, that the AY Notifications of Extensions of Time, the subject of a binding agreement between the Parties,should be set aside. 42. Further, neither Party canvased that the agreement which concluded with the AY Notifications of Extension of Time was in anyway uncertain, or not binding and/or should be set aside, but rather Clerkenwell stated, for example at paragraph 2.16 of its Referral that“[t]he Employer does not seek to reverse these EOT awards and respects the decisions made by AY in this regard. 43. At Paragraph 49 the Adjudicator states in his Decision as follows: “49. This results in a revised completion date of 12th November 2023 for the Residential Section 1 and 21st October 2023 for the Hotel Section 2.” 44. It is submitted that paragraph 49 of the Adjudicator’s Decision includes a slip. The Adjudicator did not state at paragraph 49 or anywhere else in his Decision how he calculated the revised completion date of 12th November 2023 for the Residential Section 1 nor 21st October 2023 for the Hotel Section 2. 45. By deducting the 186 days and 123 days as decided as due by the Adjudicator from the revised completion date of 12th November 2023 for the Residential Section 1 and 21st October 2023 for the Hotel Section 2, one can however establish that the Adjudicator took the dates of 10th May 2023 for Section 1 and 20th June 2023 for Section 2, rather than the correct dates of 24thAugust 2023 for Section 1 and 21st September 2023 for Section 2 as per the AY Notifications of Extensions of Time as agreed between the Parties (and acknowledged at paragraph 17 of the Adjudicator’s Decision).” “49. This results in a revised completion date of 12th November 2023 for the Residential Section 1 and 21st October 2023 for the Hotel Section 2.”
[51]To put the point shortly, HG’s case was now that the extensions of time granted in February 2023 reflected a settlement or binding agreement; that the Adjudicator had not been asked to and could not open up those extensions; and that it followed that he could only fix later dates for completion taking account of certain later events. As set out at paragraph 39 of the submission, it appeared that HG’s case was that the extensions of time that the Adjudicator had decided upon should simply be added to the so-called revised completion dates. It is evident from the submissions in the adjudication that that was not an argument that HG had advanced and that, on HG’s own case and expert evidence, it would involve the Adjudicator deciding on entitlement to extensions of time by reference to delay analyses that used a baseline programme leading to the original contractual completion dates for the Sections and then adding these extensions of time to the so-called revised completion dates. That would not be the determination of the extensions of time to which HG was entitled from those revised completion dates and in respect of Relevant Events that had occurred after either the notification of Relevant Events in December 2022 or, perhaps, the grant of the extension of time in February 2023.[52]Clerkenwell responded by email on 7 January 2026. Unsurprisingly, Clerkenwell disputed that the slip rule was relevant or applicable as HG was asking the Adjudicator to make a fundamental change to the basis of his decision. Clerkenwell contended that the Adjudicator had been asked to declare that the dates for completion were those fixed by the extension of time granted on 27 September 2023 “or such other date as the Adjudicator reasonably determines”; both parties’ experts had proceeded on this basis and produced delay analyses considering the entirety of the project; and the Adjudicator was “empowered to set dates holistically and not simply add days to AY’s dates.”[53]Clerkenwell also pointed out, which has not been disputed, that at the meeting on 17 December 2025, both experts “presented the shared agreement on the Baseline Dates for each Section and the Baseline Programme”. Clerkenwell pointed out that all delay analysis was performed against that agreed baseline and not the allegedly agreed revised completion dates and the Adjudicator’s findings were consistent with that methodology.[54]The Adjudicator responded by email on 8 January 2025. He rejected the argument that his Decision contained a slip and said:
“I accept that the revised completion dates were derived from adding the extent of critical delay identified by the experts in respect of certain Relevant Events to the original dates for completion. I confirm that was intentional.”

Part 8 proceedings

[55]Following some correspondence between the parties, it was the Part 8 proceedings that were issued first on 29 January 2026. HG sought declarations that the Adjudicator’s Decision was unenforceable and should be “set aside”. The declarations sought included:
“2. There was a binding agreement between the parties as a result of email correspondence on 8 February 2023 (by reason of the email of Mr Harper, timed at 9:30, and the response to that email from Mr Purkiss, times at 14:13). 3. The adjudicator erred in law and/or fact in his Decision, in that he failed to take into account the binding agreement of 8 February 2023 in calculating the Revised Completion Dates.”

The Part 7 proceedings

[56]On 13 February 2026, Clerkenwell issued a Claim Form and application notice seeking to enforce the Adjudicator’s Decision by summary judgment in the usual way.

Witness evidence

[57]The court had before it 3 witness statements of Christoper Philpot of Trowers & Hamlins, Clerkenwell’s solicitors, variously in the Part 7 and Part 8 proceedings; 2 witness statements of Richard Silver of Bexley Beaumont, HG’s solicitors, in both sets of proceedings; and a witness statement of Mr Harper of AY in the Part 8 proceedings. Nothing turns on whether any witness statement was technically served in one set of proceedings or the other.

Enforcement/ summary judgment

[58]On the face of the Claim Form in the Part 8 proceedings and as argued in Mr Silver’s witness statement, HG sought to defend the enforcement proceedings on the grounds of lack of jurisdiction and breach of natural justice. By the time the matter came on for hearing, the emphasis in the skeleton argument on behalf of HG was on alleged breach of natural justice and Mr Parratt KC confirmed that he no longer pursued the jurisdictional argument. Mr Parratt’s position was initially that, whatever had been agreed between the parties as to completion dates, the Adjudicator retained the jurisdiction given to him to open up, review and revise the completion dates, as provided by paragraph 20 of the Scheme. In the course of the hearing, however, that position shifted and Mr Parratt submitted that the better argument might be that, if there was a binding agreement as to the completion dates, the Adjudicator lacked that jurisdiction. As I understand it that argument was advanced on the basis that it was not open to an adjudicator to open up a binding agreement and it follows that, to a considerable extent, these two arguments turn on the same matters. It is convenient to take them together.[59]In short, in my judgment, there is nothing in the arguments advanced by HG as to lack of jurisdiction and/or breach of natural justice.[60]The dispute referred to adjudication was expressed in broad terms as a dispute as to the completion dates, Clerkenwell’s entitlement to liquidated damages, and HG’s entitlement to extensions of time. The framing of the dispute that had arisen and was referred to adjudication was admitted by HG. Further, HG advanced no argument that the adjudicator lacked jurisdiction over these disputes for whatever reason and instead engaged with exactly the dispute that had been referred to him. The arguments that were raised in the slip submission that only a dispute about certain delaying events was referred to adjudication were unsustainable and were not pursued before the court.[61]It would, of course, have been open to HG then to contend that the Adjudicator was bound by an agreement of the parties as to revised completion dates such that whether or not there was such an agreement would have been a dispute before the Adjudicator as a defence but, in my judgment, HG simply did not do so.[62]HG’s case was put in two ways, namely(i) that the Adjudicator failed to consider a material line of defence and(ii) that the Adjudicator decided something that neither party had contended for.[63]Mr Parratt relied in particular on the following authorities. Firstly, in Pilon Ltd. v Breyer Group plc [2010] EWHC 837 (TCC), Coulson J summarised the relevant principles at [22]:
“As a matter of principle, therefore, it seems to me that the law on this topic can be summarised as follows: 22.1 The adjudicator must attempt to answer the question referred to him. The question may consist of a number of separate issues. If the adjudicator has endeavoured generally to address those issues in order to answer the question then, whether right or wrong, his decision is enforceable: … 22.2 If the adjudicator fails to address the question referred to him because he has taken an erroneously restrictive view of his jurisdiction (and has, for example, failed even to consider the defence to the claim or some fundamental element of it), then that may make his decision unenforceable, either on grounds of jurisdiction or natural justice: … 22.3 However, for that reason to obtain, the adjudicator’s failure must be deliberate. If there has simply been an inadvertent failure to consider one of a number of issues embraced by the single dispute that the adjudicator has to decide, then such a failure will not ordinarily render the decision unenforceable: … 22.4 It goes without saying that any such failure must also be material: …”
[64]Coulson J further made the point that adjudicators should be aware that the Notice of Adjudication would ordinarily be confined to the claim being advanced and would rarely refer to the defences that the respondent might have. He continued:
“25. … But, subject to questions of withholding notices and the like, a responding party is entitled to defend himself against a claim for money due by reference to any legitimate available defence (including set-off), and thus such defences will ordinarily be encompassed within the notice of adjudication. 26. As a result, an adjudicator should think very carefully before ruling out a defence merely because there was no mention of it in the claiming party’s notice of adjudication. That is only common sense: it would be absurd if the claiming party could, through some devious bit of drafting, put beyond the scope of the adjudication the defending party's otherwise legitimate defence to the claim.”
[65]In KNN Colburn LLP v GD City Holdings Ltd. [2013] EWHC 2879 (QB), Stuart-Smith J set out the summary of principles from Pilon and then at [49] said:
“It will be noted that an inadvertent failure to consider one of a number of issues will “ordinarily” not render the decision unenforceable. This qualification admits the possibility that an inadvertent failure may in an extraordinary case bring the principle into play. No clear guidance is available about when an inadvertent failure will render the decision unenforceable. Since the essence of the adjudication process is that the real dispute between the parties should be resolved, it seems to me that the touchstone should be whether the inadvertent failure means the adjudicator has not effectively addressed the major issues raised on either side.... When confronted by a reasoned decision, the Court should tend to look for coherent reasoning underpinning the adjudicator’s decision rather than hastening to a conclusion that an omission renders a decision unjust. That said, however, the decision whether an adjudicator has fairly disposed of the dispute that was referred to him will depend upon the facts of each case.”
[66]In Global Switch Estates 1 Ltd v Sudlows Ltd [2020] EWHC 3314 (TCC), O’Farrell J again sought at [50] to draw together the relevant principles. As relevant to the present proceedings, these included:
“… (iii) A responding party is entitled to raise any defences it considers properly arguable to rebut the claim made by the referring party. By doing so, the responding party is not widening the scope of the adjudication; it is engaging with and responding to the issues within the scope of the adjudication. … (vi) It is a matter for the adjudicator to decide whether any defences put forward amount to a valid defence to the claim in law and on the facts. (vii) If the adjudicator asks the relevant question, it is irrelevant whether the answer arrived at is right or wrong. The decision will be enforced. (viii) If the adjudicator fails to consider whether the matters relied on by the responding party amount to a valid defence to the claim in law and on the facts, that may amount to a breach of the rules of natural justice. …”
[67]Mr Parratt did not contend, rightly in my view, that it was for an adjudicator to seek out defences and he accepted that a defence which fell to be considered had to be raised by the respondent but he also submitted that the adjudicator should realise that matters relied on by the respondent may be a defence. He submitted that failure to consider something that might be a valid defence might be a breach of natural justice but also that failure to consider a material defence would be a breach of natural justice. He accepted that, in this case, the Adjudicator’s alleged failure to consider the defence now relied on by HG was inadvertent but sought to bring HG within the gloss in KNN on the basis that the issue of what the starting point for any extension of time should be went to the heart of the dispute and the task that the Adjudicator had set himself.[68]In my view, it is clear that a pre-requisite to any argument that there has been a breach of natural justice as a result of a failure to consider a material defence is that that defence, or the matters constituting that defence, has been raised. In most circumstances, it is likely that the defence will be expressly identified as a defence. It is possible, particularly if a party is not legally represented, that an argument or facts that should reasonably be recognised as a defence may be regarded as raised by the respondent, and should be regarded by the adjudicator as raised, even if not labelled as a defence. The issue is fact sensitive. But nothing of that nature arises here.[69]Further, it is not the case that the Adjudicator in any sense ruled out a defence because it was not referred to in the Notice of Adjudication – the issue raised in Pilon at [25] and [26] and specifically relied on by HG. It is no part of Clerkenwell’s case that the argument that the parties had entered into a binding agreement as to revised completion dates was not encompassed by the Notice of Adjudication but it is rather Clerkenwell’s case that it was not raised by HG in the Response.[70]Mr Parratt accepted that the only matter he could rely on as HG’s having raised the defence of a binding agreement as to completion dates was what was said in paragraph 28 of the Response (as set out at paragraph 33 above), that is, quoting the email of 8 February 2023 and emphasising that the extension of time was agreed. That was a realistic concession. The only other passages that could conceivably have been relied upon were those at paragraphs 216 and 215 of the Response which asserted that the Adjudicator had to accept the extensions of time granted by AY for exceptionally adverse weather conditions and strikes. But that was not said on the basis of any binding agreement as to revised completion dates.[71]Focussing on paragraph 28, there was nothing in this paragraph to draw to the Adjudicator’s attention, or that ought reasonably to have drawn to the Adjudicator’s attention, that what was meant was not simply that the extension of time, granted in February 2023 by exercise of the contractual mechanism, was for a period then agreed but rather that there was a contractually binding agreement to revise the completion dates such that they should form the Adjudicator’s starting point for any extension of time.[72]On the contrary, there were multiple indicators in the Response that this was not HG’s case.[73]Firstly, no declaration sought by HG in the Response related to a finding that there was a binding agreement made on 8 February 2023.[74]Secondly, the paragraph itself, as Mr Cheung pointed out, appeared in a section of the Response that was concerned with the arguments about the scope of work within the Sections which was material to the argument that time was at large and not to an argument about a binding agreement as to completion dates.[75]Thirdly, the Adjudicator could be taken to be aware that when the parties did enter into a binding agreement to revise the completion dates, as they did in the Supplemental Agreement, they did so in a formal manner setting out the agreed impact of the revision.[76]Fourthly, and most strikingly, the suggestion that there was a binding agreement as to revised completion dates such that any consideration of extensions of time should take those dates as a starting point was wholly inconsistent with HG’s case and evidence as to the extensions of time to which it was entitled. Mr Anderson’s report said nothing to the effect that that case as to the revised completion dates formed part of his instructions. As I have said, the closest he got was his remark about a line in the sand and that reflected his interpretation not his instructions. In any event, he used as his baseline programme the original programme leading to the original contractual completion dates. That was the basis for his analysis of the critical path and his delay analysis. Mr Parratt submitted that the experts’ reliance on the baseline programme was for the purpose only of establishing the critical path but that it did not follow that they were working towards the contractual completion dates. That does not make sense – not only is a critical path a path to an end date but it is also clear that the experts both analysed impact on the critical path by reference to common end dates. The windows and events that Mr Anderson considered started from the commencement of the Works and the baseline programme and he, therefore, necessarily considered delaying events from the outset of the Works and not from a date either after the extension of time claim made in December 2022 or after the grant of the extension of time in February 2023.[77]In short, in my view, the defence or matter that HG now contends the Adjudicator ought to have taken into account was not raised by HG. In the circumstances, the reference to an agreed extension of time in paragraph 28 and the quotation of the email of 8 February did not come close to raising such a defence which was inconsistent with the expert evidence relied on by HG.[78]The second way in which the breach of natural justice argument was advanced was the contention that the Adjudicator had decided something for which neither party had contended, relying on Cantillon v Urvasco [2008] EWHC 282 (TCC) at [57].[79]That submission was founded on the concession by Clerkenwell that it did not seek to reverse AY’s extension of time awards and said in the Referral that it did not:
“seek to renege from the EOT previously awarded to HG under the Contract, despite Secretariat's detailed analysis which shows this EOT should never have been granted.”
This was all said in the context that, on Mr Barnes’ evidence and Clerkenwell’s case, AY had, in fact, granted longer extensions of time than HG were contractually entitled to. What Clerkenwell did not say is that it did not seek to renege on a binding agreement reached on 8 February 2023. On the contrary, what was said by Clerkenwell related to two extensions of time granted under the Contract. Clerkenwell clarified that it did not seek the fixing of earlier completion dates and it could not have done so under the Contract. However, both Clerkenwell and HG asked the Adjudicator to decide the extensions of time that should be granted having regard to the whole of the period of the Works. That is what he did.[80]There was no breach of natural justice and no reason not to enforce the Adjudicator’s Decision on that ground. It follows that, unless I were to find that the Part 8 proceedings afford a reason not to enforce, summary judgment will be granted to enforce the Decision.

The Part 8 proceedings

[81]HG’s case can be simply stated. As it was put in the skeleton argument, the case turned on “a simple and straightforward reading of the email of 8 February 2023 taken in its proper context and against the background matrix”. HG’s case then was that the Adjudicator erred in failing to take into account the binding agreement of 8 February 2023 and, as a result, added the extensions of time he found HG was entitled to the original completion dates and not the dates reflected in the email of 8 February 2023. It would, HG submitted, be unconscionable to enforce the Decision which did not reflect the true position.[82]HG is obviously right that the emails in December 2022 and February 2023 referred to agreeing an extension of time and the Employer’s agreement to an extension of time of 12 weeks and thus used the language of agreement. However, it seems to me that the word “agree” was being used in the sense of being prepared to or willing to do something rather than indicating an intention to enter into a legally binding agreement. That that is the case is supported by the context of the exchanges said to amount to this agreement in two senses.[83]Firstly, in December 2022, it is apparent that there were discussions between AY and HG and between AY and Clerkenwell about an extension of time. Once the period of extension was agreed, Mr Harper asked HG to make an application for an extension of time and said that he would then grant it. In other words, the parties were agreeing how they would operate the contractual mechanism and not that they would enter into some free-standing and binding agreement to revise the completion dates. That did not change and the contractual mechanism was operated in February 2023 when the extension of time was granted. It was submitted for HG that the fact that AY had not specified the extension of time granted in respect of each Relevant Event, as required by clause 2.25.3, was indicative that the contractual mechanism was not being operated but that, in my view, places far too much weight on a provision of the Contract that may easily be overlooked.[84]Mr Parratt also emphasised that the covering email of 9 February 2023 said in terms that the extension of time had been issued subject to the terms of the email of 8 February 2023 which had been agreed by HG. In my judgment, for the reasons below, that was not sufficient to make the extension of time issued under the Contract simply a reflection of a binding agreement reached outwith the Contract.[85]Secondly, the case that there was a binding agreement as to revised completion dates reached by the exchange of emails on 8 February 2023 faces considerable difficulties on the face of the documents.[86]The claim form simply sought a declaration that there was a binding agreement without any particularisation of the material terms of the agreement. The only indication of what the terms were said to be was to be found in the Adjudicator’s alleged error. When asked what the terms of the agreement were said to be, Mr Parratt’s response was clear and concise. HG’s case was that there was a binding agreement to revise the completion dates by extending them by 12 weeks which had nothing to do with the Relevant Events referred to in previous emails or the Notification of Extension of Time or the extension of time mechanism under the Contract.[87]However, the proposal in the email of 8 February 2023 was far more complex than that and the 12 weeks extension of time was proposed in the context of and “in consideration of” those far more complex proposals all of which related to the Office Contract. Paragraph 2 contained a proposal to split certain costs up to a maximum amount subject to assessment and agreement of the final amount. Paragraph 3 indicated an agreement “in principle” to awarding a further extension of time on the Office Contract once the addendum Party Wall award was agreed and the full impact on the programme assessed. Paragraph 4 proposed that HG agreed not to make a loss and expense claim subject to the addendum being in place by 17 March 2023.[88]Some of these proposals – and paragraph 3 most clearly – were expressed in terms that were clearly not intended to lead to a binding agreement. Even if that were wrong, there is no evidence that they have been implemented or that the further assessments or agreements proposed have been made.[89]Taking the proposals as a whole, it is impossible to see the apparent offer to issue an extension of time of 12 weeks as an offer to enter into a binding agreement to revise the completion dates by 12 weeks outside the confines of the contractual mechanism for extensions of time. Whether that is seen as a matter of construction of the email or a lack of intent to create legal relations does not matter.[90]Further, if there were intended to be a binding agreement, it is one lacking in clarity. The application for an extension of time made on 7 December 2022 relied on four Relevant Events. The extension of time granted, however, was in respect of two of those Relevant Events. Nothing was said about the other two matters relied on by HG. If Mr Parratt’s submission were right and the agreed revised completion dates had nothing to do with Relevant Events, it begs the question what then was being agreed. Did it remain open to HG to claim a further extension of time relying on those four Relevant Events or was any such claim compromised by the alleged agreement? Did it remain open to HG to claim a further extension of time relying on the two Relevant Events that were not referred to in the Notification of Extension of Time or was HG bound by the fact that they were not identified as the basis for the extension of time?[91]It would be open to me to find that there was no intention to create legal relations or that the alleged contract was too uncertain to be enforceable but the simpler reality, in my view, is that the parties were agreeing the extension of time to be granted under the Contract and operating the contractual mechanism.[92]Further, as I have already said, the manner in which HG presented its case in the adjudication did not, in any way, set out the consequences of the alleged agreement and, on the contrary, was predicated on a delay analysis which went back to the beginning – what Mr Cheung characterised as the holistic delay analysis. Indeed, that analysis included delay caused by Covid which was one of the matters advanced as a Relevant Event in the December 2022 application but not included in the February 2023 extension of time.[93]I invited the parties following the hearing to refer me to the law on the extent to which the court may consider subsequent conduct as an aid to construction and the parties agreed to refer me to Lewison on the Interpretation of Contracts, 8th ed, at paragraphs 3.189 and 3.190 and Chitty on Contracts, 36th ed, at paragraph 16-064. Without citing copious authority, there is general agreement that, whilst subsequent conduct is generally not admissible to interpret the terms of a contract, there are established exceptions. One such exception, and perhaps not strictly an exception, is that subsequent conduct may be relied upon as evidence of whether there was a contract and what its terms were (rather than the meaning of those terms). In the present case and for the reasons given, neither party conducted itself as if there was a binding agreement as to revised completion dates rather than an extension of time granted under the contract.[94]For all these reasons, I am satisfied that there was no binding agreement made on 8 February 2023 and I decline to make any of the declarations sought in the Part 8 claim. It follows that there is no bar to enforcing the Adjudicator’s Decision and that summary judgment will be granted such that HG is ordered to pay to Clerkenwell £955,943.43 as decided by the Adjudicator together with his fees.[95]For completeness, I should add that there were two further arguments advanced by Clerkenwell as fall back positions which, in the circumstances, I address only briefly.[96]One was that AY, as Employer’s Agent, lacked authority to enter into a binding agreement on behalf of Clerkenwell. Mr Cheung pointed, in particular, to the express provisions of Article 3 of the Contract. He submitted, rightly in my view, that Article 3 defined the scope of the Employer’s Agent’s authority, which did not extend to entering into further contractual agreements and was limited to the exercise of the functions of the Employer or Employer’s Agent under the Contract.[97]Mr Cheung placed some reliance on the decision of the Privy Council in Uniform Building Contractors Ltd v The Water and Sewerage Authority of Trinidad and Tobago [2026] UKPC 2 at [78]. The decision was concerned with clause 3.1 of the FIDIC Conditions which was in different terms from those in issue here and, amongst other things, contained an express provision that the Engineer should have no authority to amend the Contract. The terms of clause 3.1 were said to be designed to provide certainty for both sides and to ensure that events on site do not readily alter or amend the bargain agreed between the parties. There is no direct equivalence with Article 3 of the Contract in this case but the decision offers support for the view that such clauses are not to be read as granting authority beyond their specific terms.[98]Mr Parratt submitted to the contrary that AY did have authority to enter into an agreement to vary the completion dates as reasonably incidental to their contractual functions as an agent. He relied on the decision of the Court of Appeal in J L Builders & Son v Naylor & Naylor [2009] EWCA Civ 1621. The court was concerned with a building contract the terms of which were “somewhat brief and imprecise” and not with a standard form contract. Both parties engaged quantity surveyors. The contractors’ quantity surveyor was a Mr Lithgoe and the specific issue which arose in this case was whether he had authority to accept a notice from the employers (which was not sent to the contractors) making time of the essence. The Court of Appeal held that he did not. At [15] Lord Neuberger said:
“… The parties had agreed what the authority of their respective quantity surveyors was, namely to try and agree – and if possible to agree – certain figures: a classic role, one might have thought, for a quantity surveyor. But that is quite a different thing from being entitled to receive notices. …”
[99]Lord Neuberger went on at [16] to quote from the decision of HHJ Kirkham in GPN Limited (In Receivership) v O2 (U) Ltd [2004] EWHC 2494 (TCC) discussing the role of a quantity surveyor and quoting from both Hudson on Building & Engineering Contracts and Keating on Building Contracts in respect of the role of the architect under a contract. He concluded:
“Now, of course, these observations were directed to a slightly different point, but it seems to me nonetheless that the contractual functions of an agent are not to be extended beyond what he or she is expressly told to do or understood he or she should do, or whatever is reasonably incidental thereto.”
[100]This passage offers no support for the proposition that agreeing to vary the contractual completion dates is reasonably incidental to the Employer’s Agent’s functions under the Contract. Indeed, the passage quoted from Hudson says the precise opposite, namely that the architect or engineer has no implied authority to make a contract or depart from the concluded contract.[101]Mr Parratt also relied on the terms of the email of 7 December, the email of 1 February and the email of 8 February referring to the client’s agreement or approval, all of which emails were copied to Mr Banks. He submitted that the proposals put forward by AY were ones made by Clerkenwell and were simply being communicated by Mr Harper. It will be apparent from what I have said above that, in my judgment, properly construed these were not offers to enter into such a contractually binding agreement to revise the completion dates and, by the same token, cannot have clothed AY with authority to do so or been sufficient to give AY ostensible authority to enter into such an agreement.[102]Lastly, Clerkenwell advanced an argument as to lack of consideration. In particular, it was submitted that HG’s claims under the Office Contract were known to be time-barred and/or meritless and could not, therefore, be good consideration for any promise by Clerkenwell to fix new completion dates. It is sufficient to say that consideration of that submission would have involved a factual inquiry which was well beyond the scope of the Part 8 proceedings and might have led the court to conclude that the matter was not suitable for determination in these proceedings. That point was not, however, reached.