Citation: EWHC 1509 (TCC);  B.L.R. 355;  CILL 3204
Nature of case:
During the course of an on-going adjudication between the parties, Gear Construction brought Part 8 proceedings seeking a declaration as to the meaning of a clause in the amended form of the JCT Trade Contract. The McGee Group had previously entered into an agreement with WW Gear Construction to carry out the excavation and associated groundwork on a development in south east London. Three previous adjudications had arisen from this relationship, and the fourth of those, which was the subject of these proceedings, was brought by McGee’s claim for damages arising from variations under the contract.
By virtue of CPR 40.20, the court’s power to grant a declaration was very wide and unfettered. However, it was settled law that there were obvious practical difficulties in permitting an application during an on-going adjudication. It would not be appropriate to make a declaration in this case as it would result in an unacceptable imposition on an adjudicator and one that would result in unfairness, misunderstandings or mistakes. The circumstances in which a court may consider granting a declaration are where both parties had agreed that the court should do so, with a view to assisting the adjudicator, and had also agreed to extend the adjudicator’s time for making the decision in order to accommodate any determination by the court.