Wallace Estates Limited v Durkan Estates Limited & Anor [2026] EWHC 2133 (TCC)

[2026] EWHC 2133 (TCC)IN THE MATTER OF AN APPLICATION FOR A REMEDIATION CONTRIBUTION ORDER UNDER S.124 OF THE BUILDING SAFETY ACT 2022CASE REF: LON/00AH/BSB/2025/0611Case No HT-2026-000045
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 10 August 2026
Before
THE HONOURABLE MR JUSTICE CONSTABLEJUDGE SIOBHAN McGRATHPresident of the First tier Tribunal (Lands Chamber)
Between
WALLACE ESTATES LIMITEDApplicantApplicant (FTT) /Defendant and Part 20 Claimant (TCC)ApplicantDURKAN ESTATES LIMITEDRespondentFirst Respondent (FTT)RespondentClaimant (TCC)/Part 20 Defendant (TCC)RespondentDURKAN HOLDINGS LIMITEDRespondentSecond Respondent (FTT)RespondentWALLACE ESTATES LIMITEDApplicant (FTT) /Defendant and Part 20 Claimant (TCC)DURKAN ESTATES LIMITEDFirst Respondent (FTT) /Claimant (TCC)/Part 20 Defendant (TCC)DURKAN HOLDINGS LIMITEDSecond Respondent (FTT)Alice Sims (instructed by Mayer Brown International LLP) for ClaimantKerry Bretherton KC and David Hopkins (instructed by Mills & Reeve LLP) for DefendantHearing Hearing date: 31 July 2026
Approved JudgmentThis judgment was handed down remotely at 10:30am on Monday 10 th August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.Mr Justice Constable and Judge McGrath:
[1]This short judgment marks the first joint hearing of the President of the First tier Tribunal (Lands Chamber) (‘FTT’) and a Judge of the Technology and Construction Court (‘TCC’), the latter sitting both in his capacity as a High Court Judge and, jointly with Judge McGrath, as Tribunal member. The disputes concern a Remediation Agreement dated 1 Jul 2024 entered into by the parties (the “Agreement”) pursuant to which Durkan Estates Limited (“Durkan”) agreed with Wallace Estates Limited (“Wallace”) to remedy, at its own cost, certain relevant defects (“the Defects”) within the meaning of section 120 of the Building Safety Act 2022 (the “BSA”), at the building known as Centrillion Point in Croydon. A party to the FTT proceedings, but not the TCC proceedings, is Durkan’s parent company, Durkan Holdings Limited (‘Durkan HL’, together ‘the Durkan Entities’).[2]The Defects are presently the subject of a remediation order dated 4 January 2024 (“the RO”) which was imposed against Wallace by the FTT following an application by the leaseholders under section 123 of the BSA. At a hearing on 24 June 2025, the FTT considered and rejected Wallace’s application for an extension of time for compliance with the completion date in the RO. On 26 June 2025, two days later, Wallace served a notice purporting to terminate the Agreement both through the contractual machinery and at common law. Thereafter, Wallace took over the Remedial Works[3]On 29 September 2025, Wallace commenced proceedings in the FTT for a remediation contribution order (“RCO”) under section 124(1) of the BSA and claims, as their current estimate, £13,586,797.02 inclusive of VAT against the Durkan Entities.[4]Durkan issued the TCC proceedings on 6 February 2026 seeking a declaration that the termination was unlawful, and claiming damages. Wallace counterclaimed for declarations regarding the lawfulness of the termination, additionally claiming that there are further defects at the Development not caught by the RO (“the Further Defects”). The existence of the Further Defects is disputed.[5]Durkan accepts that the Defects are its responsibility to remedy, and by letter dated 19 May 2026 made an open offer to pay Wallace’s remedial costs to date and thereafter to pay instalments up to the full sum (£6,740,268, including VAT) which Durkan says it would have cost it to complete the Remedial Works. Durkan has now paid £498,455 (inclusive of applicable VAT) on account of WEL’s incurred costs.[6]By its application dated 28 May 2026, Wallace sought reverse summary judgment under CPR Pt 24 on the whole of the claim, summary judgment on Wallace’s counterclaim and costs. That application was dismissed on 30 July 2026 (see [2026] EWHC 2003 (TCC)).[7]The matters before the FTT and the Court were:(1) The Durkan Entities’ application to the FTT dated 20 May 2026 (“the FTT Application”) for joint case management of the FTT proceedings and the TCC proceedings.(2) Durkan’s application to the TCC, made simultaneously with issue of the Claim, dated 6 February 2026 (“the TCC Application”) for joint case management of the FTT and TCC Proceedings.(3) The first CMC in the TCC Proceedings.[8]By the date of the hearing, much had been agreed between the parties, including the central issue of principle namely whether the FTT proceedings and the TCC proceedings should be managed and heard together as provided for in the 2026 TCC Guide. Given, however, that this hearing was the first of its kind, both the Court and the FTT considered it appropriate to hand down a short judgment appending the Order made by the Court and the FTT by way of some initial guidance as to how FTT and TCC proceedings are to be managed.[9]We are enormously grateful to the Counsel, and the parties’ representatives, for their work in reaching agreement. In particular we share the thanks voiced by Ms Bretherton KC to Ms Sims who played the lead role in drafting what has become the Order, appended at Annex 1, and in canvassing the various issues that have required consideration prior to its finalisation. B. Joint Case Management[10]At paragraph 23 of the Particulars of Claim, Durkan aver:
“The FTT has no jurisdiction to decide issues concerning the lawfulness of the Purported Termination Notice and/or whether Durkan committed a repudiatory breach of the Agreement. Alternatively, the RCO Proceedings are not the appropriate forum in which to have these matters determined.”
[11]Wallace admitted this paragraph in its Defence.[12]At the time it commenced the TCC proceedings, on 6 February 2026, DEL issued the TCC Application in which it applied to the TCC for “an early joint case management hearing in the TCC proceedings and the FTT Proceedings on the first available date after 10 July 2026”. Paragraph 3 of the draft order attached to the TCC Application states: “An issue to be decided at the case management conference is whether and how the FTT Proceedings and the TCC Proceedings will be case managed together […]”.[13]The Fourth Edition of the TCC Guide had not, at the date of commencement of proceedings, been issued. The newly drafted section 9 reflects the work of the TCC/BSA Working Group, established in May 2024 and including Mr Justice Constable and Judge McGrath, to promote consistency of approach to BSA issues across the TCC and the FTT. Ms Sims is correct in her observation that its rationale – consistency of factual findings, the avoidance of duplicated evidence and cost, and a single, or joint, judicial mind across both sets of proceedings – is the same rationale that informs the exercise of the powers under CPR 3.1(2) and rule 6(3)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (SI 2013/1169) (“the Rules”)in any case of overlapping proceedings.[14]Section 9.2 states: “9.2.1 Whilst the FTT and the High Court have different powers under the BSA, it is to be recognized that those powers might, on occasion, give rise to proceedings in both jurisdictions in respect of the same building. The procedure set out below is intended to assist in the case management of TCC BSA Proceedings, particularly where multiple proceedings are possible in relation to the same building. 9.2.2 The BSA does not prescribe how TCC BSA Proceedings should be commenced. 9.2.3 All claim forms and/or application notices in TCC BSA Proceedings are required to be accompanied by: a) a completed questionnaire in the form provided at Appendix L of this Guide. This is designed to inform the TCC Judge about the building to which the proceedings relate, and any other proceedings or applications which have been or are likely to be commenced in the FTT or the TCC; and b) the claimant/applicant’s proposals for case management of proceedings (where more than one set of proceedings is likely). 9.2.4 All TCC BSA Proceedings will be referred by TCC Listing for the urgent attention of the Judge in Charge of the TCC (or such TCC judge as the Judge in Charge may designate), who will consider the claim form and/or application notice and the Appendix L questionnaire, and consider whether it is necessary for an initial CMC to be held to consider case management of proceedings in relation to the same building (the “Allocation CMC”), or to give such directions as the judge may deem fit, including the provision of further submissions such that any matter may be determined on the papers. The issues for consideration at this stage will generally be limited to how multiple proceedings in the FTT and TCC in relation to the building should be case managed.” a) a completed questionnaire in the form provided at Appendix L of this Guide. This is designed to inform the TCC Judge about the building to which the proceedings relate, and any other proceedings or applications which have been or are likely to be commenced in the FTT or the TCC; and b) the claimant/applicant’s proposals for case management of proceedings (where more than one set of proceedings is likely).[15]The TCC Application effectively, therefore, foreshadowed this procedure, prompting the same intervention by the TCC as would be achieved by the Appendix L questionnaire. The defined term in Section 9 of the TCC Guide (“TCC BSA Proceedings”) attaches to proceedings under ss.130 and 132 of the BSA, whereas the TCC Proceedings between Durkan and WEL concern the alleged termination and repudiation of the Agreement, and the declarations and damages sought in the event that the FTT makes an RCO against the Durkan Entities in the FTT Proceedings. The TCC Proceedings in this case do not fall in terms within the definition of “TCC BSA Proceedings” in the TCC Guide. Nevertheless, the general principle is plainly capable of application to the present situation, and it seems likely that the TCC Guide will in due course be updated to reflect a broader definition of the type of TCC case which is suitable for joint management with the FTT.[16]On 12 February 2026, the FTT rejected the Durkan Entities’ informal application for a joint case management hearing. The FTT stated: “if the Respondents wish to pursue this approach, the proper course is that the Respondents make an application on Form Order-1, which the Applicant can then have a full opportunity to consider. Any such application would need to carefully explain how such an approach would be advantageous to the advancement of the claim(s). While we make no finding on the issue, we would note that at this stage, it is not immediately apparent that this is the case. For example, having regard to the TCC Particulars of Claim, it can be argued that the claim is, at least in part, a protective claim in the event that a RCO is made against the Respondents…”.[17]On 20 May 2026, the Durkan Entities issued the FTT Application “for a joint Case Management Conference to take place between the FTT in the current proceedings and the TCC in the related unlawful termination proceedings”.[18]Apprised of the two applications (and having consulted the President of the FTT in advance), on 10 June 2026, the TCC held a directions hearing, at which Constable J directed Wallace’s summary judgment application to be heard on 20 July 2026 and this joint CMC on 31 July 2026. Wallace submitted that it was in light of the dismissal of its summary judgment application that it then agreed to joint case management, and accepted that it was inevitable in those circumstances that the current listing of the FTT hearing in November 2026 is vacated. In any event the FTT listing for November was already in jeopardy because of a significant delay in the experts’ site inspections which would inevitably have required the FTT Directions to be re-timetabled.[19]In the TCC Proceedings, the Court’s powers derive from CPR 3.1(2), exercised in furtherance of the overriding objective in CPR 1.1. The Court may consolidate proceedings (CPR 3.1(2)(h)); try two or more claims on the same occasion (CPR 3.1(2)(i)); and decide the order in which issues are to be tried (CPR 3.1(2)(k)). The White Book commentary on CPR 3.1(2)(h) and (i) is set out at note 3.1.9. In summary, the factors are:(1) The extent of the overlap of parties, facts or issues between the sets of proceedings;(2) The extent to which an order would avoid the risk of inconsistent findings;(3) The cost and delay of a multiplicity of proceedings, pleadings, pre-trial steps and interlocutory applications which would thereby be avoided;(4) The stage which the proceedings have reached, an order being more likely to save cost and delay if made early rather than late;(5) The extent to which the same advantages could be achieved by other means, including an order under CPR 3.1(2)(i) that the claims be tried on the same occasion.[20]The overriding objective is for the “court to deal with cases justly and at proportionate cost”: see CPR 1.1(1). The non-exhaustive list in CPR 1.1(2) includes factors relevant to this matter including saving expense, dealing with cases in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, ensuring that it is dealt with expeditiously and fairly, and allotting to it an appropriate share of the Court’s resources.[21]The FTT has a closely analogous power to jointly manage proceedings: by rule 6(3)(b) of the Rules, the Tribunal may “consolidate or hear together two or more sets of proceedings (or parts of proceedings) raising common issues or treat a case as a lead case (whether under rule 23 or otherwise)”. That power is exercised in accordance with the overriding objective in rule 3 of the Rules, which is similar, but not identical, to the overriding objective in the CPR: Rule 3(2) includes two matters with no CPR analogue: avoiding unnecessary formality and seeking flexibility in the proceedings (rule 3(2)(b)), and using any special expertise of the Tribunal effectively (rule 3(2)(d)). Where the criteria for joint case management are met, an order that proceedings be heard together (rather than formally consolidated) is generally to be preferred in both the FTT and the Court: each set of proceedings retains its separate identity, parties, procedural rules and judgment, avoiding the consequences of formal consolidation.[22]Both parties now seek joint case management and a single hearing to determine the RCO and the declarations/damages claims brought in the TCC, notwithstanding the inevitable delay caused to the overall resolution of the matters in dispute. It may be that the approach now agreed is little more than a reflection of the position averred by Durkan at paragraph 23 of its Particulars of Claim, and quoted above, as admitted by Wallace. The Court and the FTT are content to endorse the parties’ agreed approach, particularly in light of the significant overlap of issues and facts between the TCC and the FTT Proceedings. It plainly has the effect of avoiding inconsistent findings, and duplicative costs for both parties in relation to disclosure, witness statements, expert reports and the trial itself.[23]However, this should not be taken as a necessary endorsement (had it been argued) of Durkan’s averment at paragraph 23 as to the ability or appropriateness of the FTT deciding the question of unlawful termination, if considered relevant to a determination of whether to issue an RCO. It would be inappropriate to express a view, either way, on whether such limits exist when the matter is not in dispute between the parties and when the question has not been the subject of full argument. C. Directions[24]The procedural rules in the TCC and FTT are different in a number of respects. The TCC proceedings are governed by the Civil Procedure Rules (“CPR”). The FTT proceedings are governed by the Rules. With thanks to Ms Sims’ submissions, largely agreed by Ms Bretherton, this section of the Judgment highlights some of the main differences and explains how such issues have been dealt with in Order.[25]Composition: The mechanism by which one judge may try both sets of proceedings is straightforward. By virtue of sections 4(1)(c), 5(1)(g) and 6(1)(d) of the Tribunals, Courts and Enforcement Act 2007, a puisne judge of the High Court is already a judge of the First-tier Tribunal (and of the Upper Tribunal); no separate appointment is required. What is required is the concurrence of the President of the FTT (Property Chamber) contemplated by paragraph 9.2.5 of the TCC Guide.[26]That concurrence is provided by way of the Order, which provides at paragraph 9 that the composition of the Court and FTT for the PTR, trial and general conduct of the TCC and FTT Proceedings shall include a TCC Judge and an FTT Judge. Whilst, as envisaged by paragraph 9.2.5 of the TCC Guide, the proceedings could be dealt with by a single TCC judge sitting also as a judge of the FTT, which requires no fresh appointment but does require the concurrence of the President of the FTT (Property Chamber), the Court and the FTT consider that, at least in the circumstances of this case, there are sufficient advantages to a Court and FTT composed of at two members that the use of such judicial resources is justified.[27]In order, however, to promote efficiency, the composition of the Court/FTT for the general conduct and case management of the FTT and TCC Proceedings prior to the PTR may be a single Judge capable of sitting in the TCC and FTT.[28]The parties took a neutral stance about whether a professional member of the FTT sits alongside the judges. However, the Court/FTT took the joint decision that to include a professional member would, at least in the context of this case, add a layer of complication without significant benefit. That is because the professional member would be limited to decision making about the FTT Proceedings alone and their views would have to be ignored/isolated from decision making in the TCC. This is not insurmountable. However, where both parties are proposing to lead evidence from technical experts in the fields of architecture, fire engineering and quantity surveying, the practical complication caused by the inclusion of a professional member is not outweighed by the benefit.[29]Disclosure: The Order provides that all further disclosure not already provided shall be given by Durkan and Wallace in accordance with Practice Direction 57AD and Rule 18 of the Rules (insofar as the latter is not inconsistent with Practice Direction 57AD and the directions). This avoids the parties having to go through the disclosure process twice and it makes practical sense for the (more onerous) extended disclosure rules to primarily apply to all documents as otherwise the parties would have to work to two separate and different requirements when undertaking disclosure.[30]Rule 18(3) of the Rules restricts a party’s use of a disclosed document to the proceedings in which it was disclosed subject to, inter alia, the permission of the FTT, and CPR 31.22 is to the same effect (as is CPR 32.12 in relation to witness statements). Because the two sets of proceedings will remain separate, documents disclosed and statements served in one set could not, strictly, be deployed in the other without permission. The Order therefore records that the parties have permission to use documents, witness statements and expert reports disclosed in either set of proceedings for the purposes of both.[31]Witness statements: The Order provides that there is one set of witness statements covering the FTT and the TCC Proceedings. This avoids obvious duplication and cost. It also provides that the witness statements comply with the requirements of CPR Part 32 and Practice Direction 57AC. These requirements are more formal than the requirements under the Rules but not incompatible.[32]Expert evidence: The Order provides that there is one set of expert evidence for both proceedings covering architecture, fire engineering and quantity surveying and that this be covered by CPR Part 35. CPR Part 35 and its Practice Direction are more prescriptive than rule 19 of the Rules but, again, the two sets of procedural rules are not incompatible.[33]Costs: The parties agreed that because the value on the claim form is £10 million or more, costs management does not apply for the TCC Proceedings: see CPR 3.12(1)(a).[34]The FTT is, in essence, a no-costs regime save for any costs that may be recoverable under Rule 13 due to a party’s unreasonable conduct. By contrast, the ordinary rule in the TCC is that “costs follow the event” and there are detailed rules about costs in, inter alia, CPR Parts 36 and 44.[35]The Order provides that the parties are to maintain and utilise separate cost codes for work done in relation to the FTT and TCC proceedings in the following way:
“(a) work done solely in relation to the FTT Proceedings; (b) work done solely in relation to the TCC proceedings; (c) work done jointly in relation to the FTT and TCC Proceedings. The parties recognise that apportionment arguments may be relevant when it comes to any costs decisions.”
[36]Issues about costs will plainly be left for determination at the end of both proceedings in the usual way, but the three-way cost coding approach at least provides in advance for potential apportionment between the TCC and the FTT proceedings if that is ultimately determined to be appropriate in principle.[37]Appeals: Similarly, the appeal routes differ. A single joint trial could therefore give rise to two appeals, in two appellate courts, on the same findings of fact. However, this is not the appropriate time (or, potentially, forum) to consider the complications that this may, in the future, give rise to.[38]Parties: Durkan HL is a respondent to the FTT Proceedings but is not a party to the TCC Proceedings. The directions record, by consent, that the findings of fact made at the joint trial are to be treated as binding in both sets of proceedings and as against all three parties.[39]Compelling witnesses: Rule 20 of the Rules and CPR Part 34 provide different mechanisms for requiring a witness to attend. This will be addressed only if and to the extent it is necessary to in the future.[40]The Trial. The earliest the trial would be ready for hearing on the basis of the directions as ordered would have been October 2027. The Court is presently only able to list trials of three weeks or more from January 2028. In order to mitigate the effects of the delay, the Court determined it appropriate to fix a ‘first’ listing in January 2028, but also to fix a second listing in October 2027. Cases in the TCC have a high settlement rate: it has been about 85% over the past few years. There is a good chance, therefore, that over the next twelve months, some of the cases presently listed for October will settle, and the Court will be available to hear the case sooner. If that has not transpired by July 2027, then the second fixing will drop away, and the January 2028 listing confirmed. The Court made clear that the onus was on the parties (and, most likely Wallace) to keep in touch with listing, rather than for listing to notify the parties should October become available.