CPR Part 8 claims: what are they and when should you consider starting one?

by Martin Ewen, Partner

You often see parties using (or trying to use) the CPR Part 8 process during adjudication enforcement proceedings. Martin Ewen offers guidance to all practitioners on when it is appropriate to use CPR Part 8. 

The Civil Procedure Rules (“CPR”) set out the practice and procedure to be followed in the Civil Division of the High Court and the County Court in England and Wales. CPR Part 7 sets out the practice and procedure for bringing a claim and is most commonly used for claims brought in the High Court and County Court. CPR Part 8 sets out the alternative, simpler, procedure for claims. Crucially, however, it is only suitable for specific claims.

A claimant may use the Part 8 procedure where they seek the court’s declaration on a question which is unlikely to involve a substantial dispute of fact (CPR Part 8.1(2)). In Michael J Lonsdale (Electrical) Ltd v Bresco Electrical Services Ltd (In Liquidation),1 the court held that “[p]roceedings under Part 8 will only be entertained by the court where there is no substantive dispute on the facts”. In ISG Construction Ltd v English Architectural Glazing Ltd,2 the court noted that, in regard to the declaration sought in relation to the extension of time issue, it involved issues of fact and law “inherently unsuitable for determination” under Part 8.

When can you use Part 8? 

Matters suitable for a Part 8 claim would include a declaration on the construction of a contract or a question of law. If your dispute is likely to include a substantial dispute of fact, do not bring a claim under Part 8 as the court is very unlikely to grant the declaration(s) sought. 

If a claim is started under the Part 8 procedure but the court decides that the claim involves substantial disputes of fact, the court may order that the claim be transferred to the Part 7 procedure. This was illustrated in the recent case of Berkeley Homes (South East London) Ltd v John Sisk and Son Ltd.3 This dispute concerned which of the parties was liable for the alleged omissions and errors on a design on a project that involved the construction of three bridges over the Jubilee Line and Docklands Light Railway and a new station entrance at Twelve Trees Park, London. Berkeley’s case was that the dispute could be resolved as a matter of pure contractual construction. Sisk objected to the use of the Part 8 procedure on the basis that determining the proper construction of the contract necessitated considering a substantial dispute of fact.

The court noted from the parties’ submissions that the circumstances under which the design was developed and the Employer’s Requirements drawn up were sharply disputed and this went directly to the circumstances known to the parties at the time the contract was executed, and the factual matrix was relevant to the question of construction. It was not just a question of construing the clauses in the contract. The court, therefore, held that the claim was not suitable for determination under Part 8 and declined to make any of the declarations sought. The court also noted its discretion to order a claim to continue under Part 7 and invited the parties to consider how the claim should proceed. 

It is also worth mentioning the note of caution by Jefford J in Merit Holdings Ltd v Michael J Lonsdale4 against the over-liberal use of Part 8. She noted that “there is a real risk of the Part 8 procedure being used too liberally and inappropriately with the risk both of prejudice to one or other parties in the presentation of their case and of the court being asked to reach ill formulated and ill-informed decisions”. This was referred to by the court in Berkeley and should be borne in mind by any party contemplating bringing a Part 8 claim.

The common theme that runs through Berkeley, Merit and other claims concerning the Part 8 procedure is the importance of there being no substantial dispute as to fact. What might at first appear to be a question of contract interpretation might, on a more detailed consideration, require consideration of substantial disputed factual issues. This would inevitably render the Part 8 procedure inappropriate.

Adjudication and Part 8

In relation to adjudication, the Part 8 procedure can be a valuable tool. A Part 8 claim can be brought before the commencement of an adjudication (e.g., if it is anticipated that the responding party will argue that there is no construction contract,)5 during an adjudication (e.g., where a responding party contests the adjudicator’s jurisdiction),6 or after an adjudication (e.g., to challenge the validity of an adjudicator’s decision).7

A Part 8 claim can also be made by a party seeking a declaration about the validity of a payment notice or pay less notice. This tends to follow on from a “smash and grab” adjudication. Smash and grab adjudications are essentially where the paying party has failed to issue a valid payment and/or pay less notice under the provisions of the contract or the Housing Grants, Construction and Regeneration Act 1996, as applicable. Here, the Part 8 claim should be issued as soon as possible after the adjudicator’s decision is issued (not merely in response to adjudication enforcement proceedings). The party bringing the Part 8 claim would then either agree with the other party that there should be one set of proceedings or ask the court that the Part 8 claim be heard together with the adjudication enforcement claim.

Whilst there is no right to appeal an adjudicator’s decision, successfully obtaining declaratory relief by way of a Part 8 claim can have the same effect. In Willow Corp S.A.R.L. v MTD Contractors Ltd,8 Pepperall J upheld a Part 8 claim relating to a major part of an adjudicator’s decision (relating to liquidated damages) and prevented enforcement of that part of the decision. Pepperall J also commented that Willow had complied with Hutton Construction Ltd v Wilson Properties (London) Ltd9 as it “took the proactive step of issuing its Part 8 claim without waiting for MTD to launch enforcement proceedings” and the question of construction was “short and self-contained and well-suited to being determined in Part 8 proceedings”. Therefore, rather than the “pay now, argue later” approach that applies generally in adjudication, Part 8 proceedings can, in certain clearly defined circumstances, enable a party to avoid parts or all of an adjudicator’s decision. That said, if the adjudication enforcement proceedings would be delayed substantially so that the Part 8 claim could be heard at the same time, the court might refuse to order that both be heard together. In such circumstances, the Part 8 clamant would not avoid the “pay now, argue later” principle in adjudication.10

Drafting the declaration

Care should be taken when drafting the declarations being sought in the Part 8 claim. The court will want to see that there is practical application to the parties’ dispute in granting the declarations sought. It will want to avoid, for example, granting a declaration which simply repeats the wording of a clause in a standard form of contract. A party seeking a declaration as to whether a particular clause in a contract contains, for example, a condition precedent or what a clause means would be well advised to also set out in the declaration what the practical effect of such a declaration would be. 

By way of example, if a contract included an amended clause which contained a condition precedent regarding timely notice requirements for any claims for loss and/or expense, it would be prudent to set out in the declaration what the effect of the court granting that declaration would be. This might have the effect of imposing a time-bar on specific, identified, heads of the defendant’s claims, thereby losing their entitlement to recover those losses. Such losses could be significant in the scale of the overall dispute between the parties, which, in turn, might increase the prospects of the parties reaching a commercial settlement with savings both in terms of management time and legal costs. 

In terms of procedure, the claimant is required to file any written evidence on which it intends to rely at the same time as filing their claim form and it must be served on the defendant with the claim form. The written evidence is usually (but not always) in the form of a witness statement. The defendant must then file and serve an acknowledgement of service and evidence on the claimant within 14 days. In certain circumstances, this can be extended by 14 days and the claimant can also be afforded an opportunity to reply to the defendant’s written evidence. The court will then hear the application or, in some cases, proceed without a hearing. 

Conclusions

If you are considering bringing a Part 8 claim:

1. Will your declaration(s) involve a substantial dispute of fact? If the answer is yes, the Part 8 procedure is not appropriate.
2. Ensure that the declaration(s) is drafted in clear terms and that it would have practical application to the parties’ dispute. 
3. Follow the procedure set out in Part 8. 

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• 1. [2018] EWHC 2043 (TCC)
• 2. [2019] EWHC 3482 (TCC)
• 3. [2023] EWHC 2152 (TCC)
• 4. [2017] EWHC 2450 (TCC)
• 5. North Midland Construction Plc v AE & E Lentjes UK Ltd [2009] EWHC 1371 (TCC)
• 6. Dalkia Energy and Technical Services Ltd v Bell Group UK Ltd [2009] EWHC 73 (TCC)
• 7. Sudlows Ltd v Global Switch Estates 1 Ltd [2022] EWHC 3319 (TCC)
• 8. [2019] EWHC 1591 (TCC)
• 9. [2017] EWHC 517 (TCC)
• 10. Rochford Construction Ltd v Kilhan Construction Ltd [2020] EWHC 1947 (TCC)