Citation: [2026] EWHC 2133 (TCC)
TCC and First-tier Tribunal sit together for the first time under the Building Safety Act 2022
Mr Justice Constable and Judge Siobhan McGrath, President of the First-tier Tribunal (Property Chamber), have handed down judgment in Wallace Estates Limited v Durkan Estates Limited [2026] EWHC 2133 (TCC). It marks the first joint hearing of the President of the FTT and a judge of the TCC sitting together.
Background
The dispute concerns a remediation agreement dated 1 July 2024 (“RA”) under which Durkan Estates Limited (“Durkan”) agreed to remedy, at its own cost, relevant defects within the meaning of section 120 of the Building Safety Act 2022 (the “BSA”) at Centrillion Point in Croydon. The defects are the subject of a remediation order made by the FTT on 4 January 2024 against the freeholder, Wallace Estates Limited (“Wallace”). On 26 June 2025, two days after the FTT refused its application to extend the time for compliance with that order, Wallace served a notice purporting to terminate the RA and took over the remedial works.
Two sets of proceedings followed. In September 2025 Wallace applied to the FTT for a remediation contribution order (“RCO”) under section 124 of the BSA against Durkan and its parent, Durkan Holdings Limited, presently estimated at £13,586,797.02 inclusive of VAT. In February 2026 Durkan issued proceedings in the TCC seeking a declaration that the termination was unlawful, together with damages; Wallace counterclaimed. Wallace’s application for reverse summary judgment in the TCC proceedings was dismissed on 30 July 2026 ([2026] EWHC 2003 (TCC)).
The applications
Durkan applied to the TCC for joint case management on the day it issued its claim, and to the FTT on 20 May 2026, an earlier informal request having been refused by the FTT in February 2026 at a CMH. Apprised of both applications, and having consulted the President of the FTT, Constable J directed at a hearing on 10 June 2026 that the summary judgment application be heard on 20 July 2026 and the applications for joint case management on 31 July 2026.
Despite Wallace opposing the applications for joint case management for many months, by the date of the hearing on 31 July 2026 much had been agreed, including the central issue of principle on joint case management.
The decision
The Court and the FTT endorsed the parties’ agreed approach and, given that the hearing was the first of its kind, handed down a short judgment appending the order made by way of initial guidance. The principal points are as follows.
1. Section 9 of the TCC Guide, and its present reach
The Fourth Edition of the TCC Guide had not been issued when the proceedings were commenced. Its new section 9 reflects the work of the TCC/BSA Working Group established in May 2024. 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 (“the Rules”) in any case of overlapping proceedings.
Notably, the TCC proceedings in this case do not fall within the definition of “TCC BSA Proceedings” in the Guide, which attaches to proceedings under sections 130 and 132 of the BSA. However, the Court and FTT held that the general principle is nonetheless plainly capable of application. Practitioners with contractual claims running alongside FTT proceedings about the same building should not be deterred by the current wording of the definition in the Guide.
2. Heard together, not consolidated
The Court’s powers derive from CPR 3.1(2)(h), (i) and (k), exercised in furtherance of the overriding objective, with the factors summarised in the White Book at note 3.1.9. The FTT has a closely analogous power under rule 6(3)(b) of the Rules, exercised in accordance with the overriding objective in rule 3, which includes two matters with no CPR analogue: avoiding unnecessary formality and seeking flexibility, and using any special expertise of the Tribunal effectively.
Where the criteria are met, the Court and FTT held that an order that proceedings be heard together is generally to be preferred to formal consolidation, in both fora: each set of proceedings retains its separate identity, parties, procedural rules and judgment.
3. Composition of the Court and FTT
The mechanism is straightforward: by 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 FTT, and 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, which was given by the order itself.
Although a single TCC judge sitting also as a judge of the FTT would have sufficed, the Court and the FTT considered that in this case there were sufficient advantages in a two-member constitution to justify the judicial resource for the pre-trial review and trial. For efficiency, case management before the PTR was to be conducted by a single judge capable of sitting in both jurisdictions.
The parties were neutral on whether a professional member of the FTT should sit. The Court and the FTT decided against it: a professional member’s decision-making would be confined to the FTT proceedings and their views would have to be isolated from the TCC decision-making, a complication not outweighed by the benefit where both parties are to call experts in architecture, fire engineering and quantity surveying. However, in different cases it may be appropriate for a professional member to sit.
4. One disclosure exercise, one set of evidence
Disclosure is to be given in accordance with Practice Direction 57AD and rule 18 of the Rules insofar as the latter is not inconsistent with PD 57AD and the directions. That avoids two disclosure exercises against two different standards. Because the proceedings remain separate, rule 18(3) and CPR 31.22 (and CPR 32.12 for witness statements) would otherwise prevent material disclosed in one from being deployed in the other; the order accordingly grants permission for cross-use of documents, witness statements and expert reports.
There is a single set of witness statements complying with CPR Part 32 and Practice Direction 57AC, and a single set of expert evidence in the three disciplines governed by CPR Part 35. The Court and the FTT recorded that although the CPR requirements are more formal and more prescriptive than those under the Rules, the two regimes are not incompatible.
5. Costs: the apportionment problem
Costs management was dispensed with under CPR 3.12(1)(a), the value on the claim form being £10 million or more. The greater difficulty is that the FTT is in essence a no-costs jurisdiction, save for costs recoverable under rule 13 for unreasonable conduct, whereas costs in the TCC ordinarily follow the event.
Rather than attempt to resolve that tension in advance, the order requires the parties to maintain and use separate costs codes for (a) work done solely on the FTT proceedings, (b) work done solely on the TCC proceedings and (c) work done jointly, recording that apportionment arguments may be relevant when it comes to any costs decision. Costs are left for determination at the end of both proceedings in the usual way.
Parties embarking on joint case management should put that three-way coding in place at the outset.
6. Findings of fact binding on a non-party to the TCC claim
Durkan Holdings Limited is a respondent in the FTT proceedings but not a party to the TCC proceedings. By consent, the directions record 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.
7. What was left open
The Court and the FTT expressly declined to endorse Durkan’s pleaded averment — admitted by Wallace — that the FTT has no jurisdiction to decide the lawfulness of the termination, or that the RCO proceedings are not the appropriate forum. The Court and FTT considered that it would have been inappropriate to express a view either way where the point was not in dispute and had not been the subject of full argument.
Two further matters were postponed. First, appeal routes from the two jurisdictions differ, so a single joint trial could give rise to two appeals in two appellate courts on the same findings of fact; the judgment records that this was not the appropriate time, or potentially forum, to address those complications. Second, rule 20 of the Rules and CPR Part 34 provide different mechanisms for compelling the attendance of witnesses, to be addressed only if and to the extent necessary.
Key takeaways
- Where TCC and FTT proceedings concern the same building and common issues, joint case management is now a realistic and, on facts of this kind, an expected course. The application should be made early: Durkan applied to the TCC on the day the claim was issued and Part 9 of the Guide sets out the procedure to be followed.
- Joint case management does not require, and should not ordinarily involve, formal consolidation. Two mirror orders, one in each set of proceedings, preserve the separate identity of each.
- The practical work lies in the detail: constitution, cross-use permissions, a single disclosure standard, one set of witness statements and expert reports, and costs coding. The order appended to the judgment is a useful starting point for any party facing the same jurisdictional crossovers.
- The costs consequences of joint management remain unresolved in principle. The three-way coding regime preserves the position but does not answer it.
- The interaction between the two appeal routes following a joint trial is untouched, and will need to be addressed in a future case.
The judgment records theCourt and FTT’s thanks to counsel and the parties’ representatives, and in particular to Ms Sims, who played the lead role in drafting what became the order and in canvassing the issues requiring jurisdictional consideration before its finalisation.
Alice Sims of Keating Chambers, instructed by Mayer Brown International LLP, represents Durkan Estates Limited and Durkan Holdings Limited.
