Mace Construct Limited v Baltic Investment Holdings Limited [2026] EWHC 976 (TCC)

[2026] EWHC 976 (TCC)Case No HT-2025-000377
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 28 th April 2026
Before
ADRIAN WILLIAMSON KC(Sitting as a Deputy Judge of the High Court)
Between
MACE CONSTRUCT LIMITEDClaimantBALTIC INVESTMENT HOLDINGS LIMITEDDefendant
David Streatfeild-James KC and Mathias Cheung (instructed by Mantle Law (UK) LLP) for ClaimantJessica Stephens KC (instructed by DWF Law LLP) for DefendantHearing Hearing dates: 15 th April 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 28 th April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Adrian Williamson KC :

[1]In these Part 8 proceedings, the Claimant (Mace) seeks declarations as to the proper construction of a contract (the Contract) for the refurbishment (the Works) of the Baltic Exchange Building, 38 St Mary Axe, London (the Building). The Defendant (Baltic) is the Employer under the Contract.[2]The Contract was dated 15 December 2023, was on an amended JCT Design and Build Contract 2016 form and incorporated the Employer’s Requirements and Contractor’s Proposals. The Contract Documents were listed in a Contract Contents List. This provided for inter alia:(1) The JCT Form, with an extensive Schedule of Amendments (Volume 1, Items1.1 and1.2 ).(2) The Employer’s Requirements (Volume 2).(3) The Contractor’s Proposals (Volume 3), including: (a) The Contract Sum Analysis (Item3.1 ). (b) A document entitled “Tender Queries.xls” (Item3.2 ); (c) A document entitled “Derogations Final.pdf” (Item3.3 ); (d) A programme (Item3.4 )[3]The parties are in dispute over a range of matters, but, by way of background to the present proceedings it is relevant to note that on 24th December 2024, the Employer’s Agent granted extensions of time totalling 7 weeks and 5 days under various clauses of the Contract in relation to three events, two of which were the subject of claims by Mace for extensions of time. This was on the basis that the delays resulted from changes to the design contained in the Employer’s Requirements and/or the need to obtain further planning approvals and listed building consents, none of which was held to be within the scope of Mace’s contractual responsibility.[4]Baltic challenged this grant of extensions of time in an adjudication. The decision of Mr Nigel Davies (the Adjudicator) was dated 29 August 2025 and corrected on 2nd September 2025 (the Decision). The Adjudicator concluded that the extension granted on 24 December 2024 was not binding on him, and he reviewed and revised it in the light of his findings so as to reduce it to zero.[5]Mace do not, as I understand it, agree with a great deal of what the Adjudicator decided, both legally and factually. However, for present purposes, Mace simply invite the Court to grant the declaratory relief discussed below.[6]Likewise, Baltic are substantially at odds with Mace on numerous factual matters, some of which have been rehearsed in the evidence submitted in the present proceedings. However, Ms Stephens KC, who appears for Baltic, accepted that these were proper Part 8 proceedings and that it was not necessary to delve into the disputed facts in order to resolve the issues relevant to the declarations.[7]Against that brief background, I propose to deal with the matters as follows:a. Legal background;b. Declarations 1 and 2;c. Declarations 3, 4 and 5;d. Declaration 6;e. Declaration 7;f. Conclusions.

A - Legal background

[8]The parties were in agreement as to the relevant principles of contractual interpretation. These were summarised as follows in Mace’s skeleton argument, and I shall proceed on that basis:(1) The meaning of the Contract is to be determined at the time of contract i.e. as at 15 December 2023;(2) Interpretation in this context is a matter of ascertaining the meaning of the language used and the objective intention of the parties as a matter of the construction of the Contract as a whole which is a unitary exercise and an iterative process: see e.g. Wood v Capita Insurance Services Ltd [2017] UKSC 24 at [10]-[12] (Lord Hodge);(3) The Court should give effect to all parts of the Contract where possible, with no part being treated as inoperative or surplus: see Sir Kim Lewison’s Interpretation of Contracts (8th ed), Chapter 7, Section 3;(4) The exercise starts from the presumption, given that the parties have included in an operative part of a formal agreement a provision or provisions, that they intended what was incorporated to have some effect on the parties’ rights and obligations: see Dwr Cymru Cyfyngedig v Corus UK Ltd [2007] EWCA Civ 285 at [13] (Moore-Bick LJ); PBS Energo AS v Bester Generacion UK Ltd [2020] EWHC 223 (TCC) at [99]-[104] (Cockerill J).(5) The Court should give greater weight to special conditions than to standard form provisions: see Interpretation of Contracts, Chapter 7, Section 4.[9]As to propositions 3 and 4, I would emphasise what Sir Kim Lewison says at para 7.24 as follows:
“The interpretation of a document as a whole necessarily involves giving effect to each part of it in relation to all other parts of it. Accordingly, as a corollary of the principle that a document must be interpreted as a whole, effect must be given to each part of the document. This in turn means that in general each part of the document is taken to have been deliberately inserted, having regard to all the other parts of the document”

B - Declarations 1 and 2

[10]These matters can be dealt with shortly.[11]Mace seek the following declarations:
“1. The Tender Clarifications entitled “Baltic Exchange - Final Clarifications.pdf” has been incorporated into and forms part of the Contract (under item 2.19 of the ERs in Volume 2 of the Contract)… 2. The Schedule of Derogations entitled “Derogations Final.pdf” has been incorporated into and forms part of the Contract (under item 3.3 of the CPs in Volume 3 of the Contract)”
[12]It is now common ground that the Tender Clarifications and the Schedule of Derogations have been incorporated into the Contract. Mace therefore invite the Court to so declare.[13]Ms Stephens KC resists the grant of such relief on the basis that it is unnecessary, there being no dispute that these documents were indeed incorporated into the Contract. As to this Mr Streatfeild-James KC, who appears for Mace, observes that Baltic has consistently maintained during the adjudication that the Schedule of Derogations was not incorporated into the Contract. The Adjudicator extended this argument to the Tender Clarifications. He submits, and I agree, that determination of the documents which formed part of the Contract is the obvious starting point for any consideration of the rights of the parties.[14]I would therefore grant declarations 1 and 2 as asked.

C - Declarations 3, 4 and 5

[15]Mace seek the following declarations:
“3. On a proper interpretation of amended clause 1.3 of the Contract, the Schedule of Derogations and/or the Tender Clarifications are not superseded or overridden by the Amended JCT Terms, but have to be given effect as part of the Contract as a whole to define, qualify and/or clarify the contractual allocation of risks and responsibilities in respect of design and consents (under clauses 2.1.1, 2.1.3 and 2.17 of the Contract or otherwise); 4. At the time of contract, Mace did not take on any design responsibility and any associated risks of discrepancies, inconsistencies and inadequacies (under clauses 2.1.1 and 2.17 of the Contract or otherwise) in respect of the Derogation Items identified in the Schedule of Derogations; 5. Until the design solution for the Derogation Items was finally approved and instructed by Baltic, Mace did not take on any design responsibility and any associated risks of discrepancies, inconsistencies and inadequacies (under clauses 2.1.1 and 2.17 of the Contract or otherwise) in respect of the Derogation Items identified in the Schedule of Derogations.”
[16]It is immediately apparent that these declarations are concerned with the limits, if any, of Mace’s responsibilities in relation to design.[17]The following aspects of design responsibility appeared uncontroversial:a. Mace were to carry out and complete the design of the Works: Article 1 and Condition 2.1;b. By condition 2.17, Mace confirmed and warranted that it was fully responsible and liable in all respects for the entire design of the Works regardless of whether it had been(a) prepared by or on behalf of Mace and/or(b) carried out on or before the date of the Contract.[18]It was also common ground that, for a short initial period, Mace’s obligations were further defined and limited as follows:
"8.6A.1 The Contractor shall only be entitled to proceed with the Initial Scope of Works and shall not carry out any other part of the Works on or prior to 28 February 2024 unless and to the extent confirmed by the Employer or the Employer's Agent in writing. The Contractor shall proceed to carry out the Works in full with effect from 1 March 2024 or such other date agreed between the Parties in writing provided that the Employer has not issued a notice to terminate the Contractor's employment under this Contract in accordance with sub-clause 8.6.2A. 8.6A.2 The Employer shall be entitled by notice to the Contractor to terminate the Contractor's employment under this Contract at will provided that it issues a notice to the Contractor doing so on or prior to 28 February 2024… 8.6A.3 This clause 8.6 shall take precedence over all other clauses of the Contract."
[19]Ms Stephens KC submitted, and I agree, that this arrangement was similar to the issue of a Letter of Intent, with limited obligations on each side. This arrangement was concerned with “the Initial Scope of Works”, defined in the Schedule of Amendments as “the site setup and establishment by the Contractor, completion of the design associated with the activities outlined within the Derogations Programme_V3, undertaking of surveys as listed within the pricing schedule and associated preliminary spend.”[20]Ms Stephens KC accepted, as I understood her submissions, that during this initial period, Mace’s design obligations were limited by section 1 and section 2 para 2 in the Schedule of Derogations, with emphasis added, and the whole of section 2 set out for clarity:
“1. Mace Construct Ltd are unable to take design responsibility, associated risk of any discrepancies, inconsistencies and inadequacy of the below listed items until the period of initial design development is complete on the 2nd February 2024, 6 working weeks from anticipated contract execution date (08 December 2023)… (a number of items were then listed, with commentary) 2 Once the derogations listed in this document have been concluded and approval from all parties obtained, and formal instruction received Mace Construct Ltd will take design responsibility on the items listed above. Mace Construct Ltd will take design responsibility, excluding planning approval from the 2nd of February 2024 , 6 working weeks from anticipated contract execution date (08 December 2023). The Heritage Windows will be completed within 5 weeks due to the criticality of these works.”
[21]However, she submitted that Mace bore full and unqualified design responsibility for the listed items from 2nd February 2024. In other words, she, in effect, submitted that no weight was to be attached to the words emphasised in the preceding paragraph, i.e. section 2 para 1. This really is the crux of the dispute between the parties, for Mr Streatfeild-James KC submits that Mace only undertook such responsibility for the listed items once Mace had received the necessary instructions.[22]For the reasons I set out below, I think that Mace’s case is to be preferred on this issue.[23]I start by asking what these commercial parties were seeking to achieve in agreeing, in this sophisticated and complex Contract, a Schedule of Derogations. After all (per the OED) a derogation is, inter alia, “the partial abrogation or repeal of a law, contract, treaty, legal right, etc.” The example is there given of a statute (from 1793) which “gives a privilege to the debtor, in derogation of the common law right of the creditor”. It seems to me clear that the parties were agreeing, in relation to the listed items, that Mace’s obligations were to be in some way limited.[24]Next, and as the passage above cited from Lewison makes clear, the Court should seek to give effect to the entirety of the agreement between the parties. It seems to me that it would be an odd result if paragraphs 1 and 2 of the Schedule of Derogations were to be given effect to, save for the words emphasised above (“Once the derogations listed in this document have been concluded…Mace Construct Ltd will take design responsibility on the items listed above”).[25]The parties clearly intended that there would be a process of to and fro on the design of these items, which would be concluded with the issue of an instruction to Mace. The Derogations Programme_V3 (as referred to in the definition of “Initial Scope of Works”) set out a series of steps for each of the listed items. In each case, the steps led up to the provision of an instruction to Mace.[26]For example, in relation to the windows, there were the following steps (with some spelling corrections supplied):
“30 Window meeting - Fabric / Jon Lowe / Structural 31 Progress meeting - Fabric / Structural 32 Revised drawings & details - Fabric / Structural 33 Heritage / Acoustic / BREEAM Approval 34 Final Drawing amendments 35 Submission for Approval 36 Client Approval Period 37 Instruction to MACE 38 Submission to Planning”
[27]Thus, it seems to me that, unless there is some reason not to do so, effect should be given to the whole of the Contract, including all the provisions of the Schedule of Derogations and the Derogations Programme_V3.[28]Ms Stephens KC submits that there is such a reason and she relies in particular upon the provisions of clause 1.3, as substantially amended: “i. The Agreement and these Conditions are to be read as a whole. ii. Nothing contained in any other Contract Document or any Framework Agreement, irrespective of their terms, shall override or modify the Agreement or these Conditions or the Schedule of Amendments. iii. In the event of any discrepancy between(a) the Agreement, the Recitals, the Articles, the Contract Particulars, the Conditions and/or the Schedule and(b) the Schedule of Amendments, then the provisions of the Schedule of Amendments shall prevail. iv. In the event of any discrepancy between (a) the Schedule of Derogations and (b) the Employer's Requirements, the Schedule of Derogations shall prevail." (numbering inserted for clarity)[29]Item (i) simply states the obvious. It is in accordance with the principles of contractual interpretation summarised above. It should be noted that JCT Forms have contained similar wording to items (i) and (ii) since at least 1939. The courts have wrestled with this wording on a number of occasions and have, in general, concluded that effect can and should be given to the entirety of the contractual documents, notwithstanding the “override or modify” wording or variants thereof: see the discussion in Keating on Construction Contracts (12th ed) paras 21-058 to 21-065. Whilst, of course, each contract must be interpreted on its own wording, and the Contract was subject to extensive bespoke amendments, this past history provides a useful sense check. The Court is entitled to look with some initial scepticism at the proposition that carefully agreed bespoke provisions are not to be operated as the parties appear to have intended.[30]As to item (ii) the following points can be made:a. It was not suggested that the Schedule of Derogations would override, i.e. (per OED) “prevail over” the Agreement etc.;b. “Modify”, per OED, means to “alter in the direction of mildness or moderation; to make less severe, rigorous, or extreme; to qualify, tone down, moderate”. I do not think that the Schedule of Derogations has this effect upon the Agreement and the Conditions. Rather it explains and supplements them, by clarifying how and in what way Mace is to perform its design obligations and undertake its design responsibility in relation to the listed items;c. There is, therefore, nothing for this item to bite upon.[31]As regards (iii), it seems to me that, if there were a discrepancy of this kind, then the Schedule of Amendments would prevail. For the reasons set out above, I do not think there is such a discrepancy. But if there was such a discrepancy, then the Schedule of Amendments prevails. And it is the Schedule of Derogations, called up and referenced in the Schedule of Amendments, which creates the Initial Scope of Works regime summarised above. Thus, the Schedule of Derogations would prevail.[32]This view is reinforced by item (iv). This, if it is necessary to refer to it, gives primacy to the Schedule of Derogations.[33]For these reasons, I prefer Mace’s case in relation to the design issues. I think that it is appropriate to grant declarations 3 to 5, subject to one point. Declaration 3 refers to “consents under clause…2.1.3”. This seems to be directed at the vexed question of planning, which I deal with next. As at present advised I do not think that this wording should be included within declaration 3. I did not receive any detailed submissions on the precise wording of the declarations and so do not decide this point finally, pending receipt of drafts which respond to my Judgment.

D - Declaration 6

[34]This declaration is directed at planning issues. It provides as follows: “Mace did not take on any risks (under clause 2.1.3 of the Contract or otherwise) associated with delays by local authorities in granting planning permissions, approvals and/or consents (generally, or alternatively in respect of the Derogation Items identified in the Schedule of Derogations) which were not reasonably foreseeable at the date of the Contract and which Mace took all practicable steps to avoid”.[35]The Building is listed. It is also in a prominent position in the City of London. The Works of refurbishment of the Building were likely, therefore, to raise planning issues. These could in turn cause delay to the Works. This might be due to, inter alia:a. Delay by Mace in submitting necessary applications;b. The submission by Mace of inadequate or incomplete applications;c. Delay by the City of London in dealing with applications;d. Some combination of the above.[36]The parties were aware of these possibilities and catered for them, inter alia, as follows:a. Condition 2.1.3 had the following words inserted: “ The Contractor shall be responsible for obtaining all consents necessary for the carrying out and completion of the Works (to the extent that these have not already been obtained) and shall comply with such consents and for the discharge of any conditions or reserved matters contained within the planning permission(s) for the Works without any adjustment to the Contract Sum and the Contractor shall not have nor make any claim for an extension of time under clause 2.25 or for loss and expense under clause 4.20.”b. Condition 2.26.13 provided for a Relevant Event where there was “delay in receipt of any necessary permission or approval of any statutory body other than in respect of all relevant building regulations which the Contractor has taken all practicable steps to avoid or reduce”;c. The Schedule of Derogations stated that Mace would take design responsibility, excluding planning approval, from the 2nd of February 2024.[37]Mr Streatfeild-James KC accepts that the wording of declaration 6 is muddled. In particular, reference to delays “which were not reasonably foreseeable at the date of the Contract” appears to be based on a misreading of an amendment to a different clause, clause 2.26.14. He invites me, in effect, to rescue what I can from the wording provided.[38]I agree that the wording is muddled, but I consider that the problem goes deeper than that. As is apparent from my summary at paragraph 35 above, delay due to planning issues is likely to be highly fact sensitive and potentially complex. Suppose Mace make a submission which is rejected by the City of London as lacking essential details. Delay then occurs. It may be that the application was a perfectly good one and was wrongly rejected. Or it may be good in parts and should have been dealt with to some degree by the City. And so on.[39]Furthermore, the bulk of the relevant contractual material here consists of detailed express terms which deal with responsibility for planning delays: conditions 2.1.3 and 2.26.13. I do not think it is appropriate to grant declarations which seek to paraphrase these sorts of terms. The parties must rely upon their express contractual rights and obligations.[40]The design reference in the Schedule of Derogations (“Mace Construct Ltd will take design responsibility, excluding planning approval”) is puzzling, but I do not think it can be construed in a vacuum. It may assist Mace in certain factual situations, but that would have to be a fact specific enquiry.[41]For these reasons, I would not grant declaration 6. Either I would simply be reciting the wording of certain express terms or I would be venturing into territory which is factually complex. This may also impact upon the proper wording of declaration 3: see above.

E - Declaration 7

[42]This declaration is sought in the following terms:
“An adjudicator and/or the court does not have the power to fix a completion date which is earlier than that which has previously been fixed by the Employer’s Agent, by virtue of clause 2.25.4 and/or clause 2.25.5.2 of the Contract”
[43]This declaration raises different and somewhat novel issues.[44]The relevant provisions of the Contract in relation to extensions of time are as follows, with emphasis added:
“2.25.1 If on receiving a notice and particulars under clause 2.24: 2.25.1.1 any of the events which are stated to be a cause of delay is a Relevant Event; and 2.25.1.2 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... 2.25.4 After the first fixing of a later Completion Date in respect of the Works or a Section…the Employer may by notice to the Contractor, giving the details referred to in clause 2.25.3, fix a Completion Date for the Works or that Section earlier than that previously so fixed if the fixing of such earlier Completion Date is fair and reasonable, having regard to any Relevant Omissions for which instructions have been issued after the last occasion on which a new Completion Date was fixed for the Works or for that Section. 2.25.5 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 2.25.3: 2.25.5.1 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 2.24.1; or 2.25.5.2 subject to clauses 2.25.6.3 and 2.25.6.4, 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 2.25.5.3 confirm the Completion Date previously fixed.”
[45]Mr Streatfeild-James KC points out, correctly, that the exercise to be performed under clause 2.25.1 is prospective. The Employer, or his Agent, must estimate the effect, in the future, of Relevant Events which have occurred. Moreover, as he submits, the Employer is then fixed with this extension of time, even during the clause 2.25.5 process at the end of the contract, unless there have been Relevant Omissions.[46]Mr Streatfeild-James KC refers to the following helpful passage in Keating on Construction Contracts (12th ed):
“ 8-039 Prospective and retrospective extension of time The question of whether an extension of time (or an assessment of a reasonable time for completion) should be made prospectively or retrospectively raises important points of principle when identifying the critical path and causes of delay. In broad terms a prospective assessment may overestimate the delay since it will take no account of mitigation measures taken by the employer or contractor to reduce the delay or delay subsequently caused by the contractor’s default but, in certain circumstances, it can also underestimate the delay. The position is further complicated by the fact that both the Standard Form of Building Contract and the Infrastructure Conditions of Contract require extensions of time to be granted during the course of the contract (provided the appropriate notification and particulars have been given) as well as a review of the extensions of time once work is completed. Where an extension of time granted during the course of the works underestimates delay, this can be corrected on the review at completion, but overestimates cannot be corrected since the review process prohibits an earlier date being fixed. Where extensions of time (or an assessment of a reasonable time) are considered by a tribunal long after the events relied upon have occurred, it is suggested that it would be artificial to ignore entirely what in fact happened by adopting a wholly prospective approach. However, in Walter Lilly & Co Ltd v DMW Developments Ltd it was held that Cl.25.3.3 of the JCT Standard Form of Building Contract required a consideration of what critically delayed the works as they went along, as opposed to a purely retrospective exercise.”

Prospective and retrospective extension of time

[47]Thus far, I agree with these submissions, which seem to me to be entirely orthodox. But Mr Streatfeild-James KC then makes the bold further submission that an extension of time granted under clause 2.25.1, however incorrect, cannot be reviewed by the adjudicator or the court. The core of this submission appeared to be that the adjudicator or the court would never be in a position to carry out the prospective exercise required by clause 2.25.1 but would be looking at the matter retrospectively, knowing how matters had turned out.[48]Ms Stephens KC retorts that this (somewhat surprising) conclusion that the Employer is eternally saddled with an erroneous extension of time ignores the power of review given to the adjudicator.[49]It is common ground that the Contract provides for Adjudication, and that the provisions of the Scheme for Construction Contracts (England and Wales) Regulations 1998, as amended, apply (the Scheme). The relevant provision is as follows:
“20. The adjudicator shall decide the matters in dispute. He may take into account any other matters which the parties to the dispute agree should be within the scope of the adjudication or which are matters under the contract which he considers are necessarily connected with the dispute. In particular, he may- (a) open up, revise and review any decision taken or any certificate given by any person referred to in the contract unless the contract states that the decision or certificate is final and conclusive”
[50]Ms Stephens KC submits that this empowers and requires the adjudicator to “stand in the shoes” of the Employer/Agent performing his duties under clause 2.25.1. I agree. The Adjudicator can open up, revise and review the extension of time granted under clause 2.25.1, but, in so doing, he is to carry out the task which that clause requires, i.e. a prospective assessment in response to the notice and particulars submitted under clause 2.24.[51]I accept that, as Mr Streatfeild-James KC in effect submits, this may be a difficult task for the adjudicator, who has to travel back to the time at which the notice and particulars were submitted under clause 2.24. This requires him to ignore what has happened since that date. However, these all seem to me to be points as to the evidence and procedure which the adjudicator should consider and adopt. They are not objections of principle to the adjudicator carrying out his reviewing function under paragraph 20 of the Scheme.[52]For these reasons, I decline to grant declaration 7.

F - Conclusions

[53]For these reasons I would grant declarations 1,2 4 and 5 as asked, but I would not grant declarations 6 and 7.[54]In relation to the wording of declaration 3, and any other consequential matters which may arise, I would invite Counsel to agree matters if possible, failing which a short further hearing will be convened.