30/10/2026
Durkan Estates Ltd V Wallace Estates Limited [2026] EWHC 2003 (TCC) & Wallace Estates Ltd V Durkan Estates Ltd and another company [2026] EWHC 2133 (TCC) (‘Durkan’ / ‘Wallace’)
The judgments consider two increasingly significant issues arising from the Building Safety Act 2022 (BSA 2022). Firstly, the interconnection of a Remediation Order (RO) with a remediation agreement where the terms of each do not align; and secondly, how overlapping proceedings in the Technology and Construction Courts (TCC) and First-tier Tribunal (FTT) should be managed where both concern the same building safety defects.
Factual Background
In January 2024 a RO was granted to a leaseholder against Wallace, the owner of Centrillion Point, for the remediation of internal fire safety defects by 31 May 2025.
Wallace could have sought a Remediation Contribution Order (RCO) against Durkan, the original owner and developer of the building, under section 124 of the BSA 2022 however, the parties were able to reach an agreement for Durkan to undertake the remediation works (the Agreement).
Despite the RO requiring works to be completed by 31 May 2025, the Agreement provided for completion by 10 September 2025. Wallace therefore applied to the FTT to vary the date in the RO to the 10 September 2025 but was unsuccessful as the FTT concluded that there was insufficient information available to determine an appropriate revised completion date
Wallace was therefore left in a position where it was required by the RO to remediate the works by 31 May, but the Agreement required Durkan to do so by 10 September. As a result, Wallace terminated the Agreement asserting both its contractual and common law termination rights.
The termination gave rise to two sets of proceedings:
Wallace to the FTT for an RCO against Durkan for the cost of the remedial works (which the parties had sought to avoid by way of the Agreement); and
Durkan to the TCC for a declaration that Wallace’s termination of the Agreement was unlawful.
As both proceedings concerned the same remediation works and involved significant factual overlap, Durkan applied for joint case management hearing before both the TCC and the FTT.
Termination and the BSA 2022
The TCC found that the termination of the Agreement was unlawful. Its judgment made a number of important points as to the impact of the BSA 2022 on remediation contracts.
Crucially, for a delay to amount to a repudiatory breach that entitles a party to terminate, the contract must make compliance with that deadline essential. Whilst a RO can increase the importance of timely performance, it cannot alter what the parties have themselves agreed. Accordingly, if the parties wanted the deadline to be essential, it needed to have made it clear in the Agreement itself.
The decision highlights that parties seeking to manage remediation projects should ensure that, when entering agreements, critical regulatory milestones are clearly identified and should be wary of assuming the FTT will vary RO’s to reflect the terms of agreements.
Joint Case Management – Guidance from the TCC and FTT
The FTT and TCC have demonstrated a willingness to coordinate proceedings arising out of building safety disputes whilst still preserving the distinct jurisdictional roles of each forum. They also provided guidance for future cases, such as using a judge authorised to sit in both jurisdictions to hold joint case management hearings, the cross-use of disclosure and evidence documents across both sets of proceedings, and for parties to maintain separate costs records to reflect the differing costs regimes in the FTT and TCC.
Those advising developers, landlords, contractors and building owners involved in remediation claims should therefore consider at an early stage how overlapping proceedings, disclosure obligations, expert evidence and costs management will be addressed.
If you would like to discuss the impact of these decisions on your remediation projects, Building Safety Act obligations or dispute resolution strategy, please contact our Infrastructure and Construction team.
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