Children's Ark Partnerships Limited v Kajima Construction Europe (UK) Limited & Anor.

Children's Ark Partnerships Limited v Kajima Construction Europe (UK) Limited & Anor.

The contractual Dispute Resolution Procedure, though expressed as a condition precedent, is not enforceable due to lack of clarity and certainty. Therefore, failure to comply does not deprive the court of jurisdiction nor merit a stay or strike out. CAP acted reasonably in issuing proceedings before expiry of limitation and the claim is not abusive.

Parties
Claimant: Children’s Ark Partnerships Limited; First Defendant: Kajima Construction Europe (UK) Limited; Second Defendant: Kajima Europe Limited
Jurisdiction
England and Wales
Judgment Date
22 June 2022
Procedural Posture
Civil / Final Judgment on Strike Out and Jurisdictional Challenge
Outcome
Application dismissed
Legal Topics
Alternative Dispute Resolution, Jurisdiction, Limitation of Actions, Strike Out Applications, Abuse of Process
Contract Law Civil Procedure Alternative Dispute Resolution Jurisdiction Limitation of Actions Strike Out Applications Abuse of Process

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Parties

Children’s Ark Partnerships Limited

Claimant

Kajima Construction Europe (UK) Limited

First Defendant

Kajima Europe Limited

Second Defendant

Procedural Posture

Civil / Final Judgment on Strike Out and Jurisdictional Challenge

Legal Issues

  1. 1 Whether failure to comply with contractual ADR provision is a condition precedent to litigation
  2. 2 Whether the Dispute Resolution Procedure is enforceable
  3. 3 Whether the court should exercise jurisdiction or stay proceedings

Ratio Decidendi

The contractual Dispute Resolution Procedure, though expressed as a condition precedent, is not enforceable due to lack of clarity and certainty. Therefore, failure to comply does not deprive the court of jurisdiction nor merit a stay or strike out. CAP acted reasonably in issuing proceedings before expiry of limitation and the claim is not abusive.

Court Disposition

Application dismissed

Orders

  • Kajima’s application to strike out or set aside the claim form is dismissed
  • No stay or strike out is granted