The Council engaged Jackson to construct a community sports centre, including two pools, in Suffolk. The specification stated that either the paint finish for the steel frame should be applied with the steel beams in situ or be pre-finished.

Jackson commenced an adjudication and claimed an extension of time as a result of delays arising from the discovery of asbestos and other contamination on site, and painting the steelwork in situ. The adjudicator awarded Jackson an extension of time and said that the decision to change where the steel beams were painted resulted from the late finalisation of the steelwork design.

The Council commenced Part 8 proceedings and sought a declaration that the decision to paint the pool hall beams was taken by Jackson in October 2006 and not as a result of late finalisation of the steelwork design. The Council stated that the design did not change after July 2006. Jackson contested the application on the basis that there was a substantial dispute of fact and that in any event the dispute between the parties would not be narrowed by a decision on this issue. The dispute would not be narrowed as Jackson relied on other grounds for delay caused by the birdcage scaffolding as well as concurrent delay.

The judge stated at paragraph 29 of the judgment:

“…the ability of a party to obtain a declaration on a point of law where there is little dispute of fact, can be a useful means of resolving an important issue between the parties, which, for instance may assist the parties in resolving a complex dispute by negotiation or ADR. In the context of adjudication, the resolution of an issue as to jurisdiction may provide a means of avoiding wasted costs of an adjudication… in appropriate cases, a declaration under Part 8 might permit a party to obtain a final determination of the dispute which was the subject of a temporarily binding decision by the adjudicator or allow the parties to resolve their differences on the basis that a finding by the court has shown that an essential part of the adjudicator's decision was wrong.”

In reviewing the factual evidence the judge decided that there was a dispute about: (1) whether design information was late; and (2) the impact of any late steelwork design upon Jackson’s decision to paint the steel beams in situ. The judge did not consider the factual disputes limited. Therefore they could not be resolved under Part 8 or via a hybrid Part 8 procedure involving a short hearing.

It was clear that a determination in favour of the Council would not lead to a final determination of the dispute in the adjudicator’s decision: even if the delay caused by the birdcage scaffold were determined not to give rise to an extension of time, there were two aspects of concurrent delay on which Jackson would rely.

Any declaration the judge could give would serve no useful purpose nor do justice as between the parties.

The judge concluded that no remedy lay in the Part 8 claim and to grant one would “prove a treacherous shortcut”.