[2020] EWHC 2049 (TCC)

Bringing Part 8 proceedings, RSK claimed declaratory relief that, if and insofar as RSK assumed a common law duty of care to Hexagon in respect of the ground investigation and report, the nature, scope and extent of such duty was circumscribed by the limitations of liability provisions contained in RSK’s proposal document. The Court was not asked to construe the meaning and effect of RSK’s terms and conditions, including the limitations on liability, for the purpose of this Part 8 claim. However, the Court was asked to determine whether the nature and scope of any duty of care would be limited by those terms and conditions as a matter of principle.

Hexagon opposed RSK’s claim for relief stating first of all that the use of the Part 8 procedure was inappropriate. Mrs Justice O’Farrell agreed. The problem for RSK was that the contractual matrix was in dispute and the Court did not, because Part 8 is a summary procedure, have before it the evidence needed to resolve that dispute. The Court has been asked to assume that there was no contract between RSK and Hexagon but RSK’s position was that there was such a contract. The existence of a direct contract between the parties could impact the nature and scope of the duty of care at common law.

The Judge was clear that a Court cannot determine these issues in a vacuum, that is without proper findings as to the existence of any contract between the parties, the terms and conditions of any such contract and the proper construction of such terms. This could not be done at a summary hearing. In those circumstances, the claim was: “simply not suitable for determination by way of Part 8 proceedings”.