Fairgrove Homes Ltd v Monument Two Ltd [2021] EWHC 3450 (TCC) (21 December 2021)

Fairgrove Homes Ltd v Monument Two Ltd [2021] EWHC 3450 (TCC) (21 December 2021)

The Part 8 Claim did not constitute proceedings to determine liability under clause 2.1(d) of the Settlement Agreement as required by paragraph 3 of the Tomlin Order Schedule, because it did not seek a final determination of entitlement to the £50,000. Therefore, under the Tomlin Order, the funds held in escrow must be paid to Fairgrove without set off or deduction. Even if the Part 8 Claim had qualified, the proper construction of clause 2.1(d) is that Fairgrove was entitled to payment of £50,000 by 30 April 2020 regardless of the final account.

Citation
[2021] EWHC 3450 (TCC)
Parties
Claimant (ht 2020 000364), Defendant (ht 2021 000411): Fairgrove Homes Limited; Defendant (ht 2020 000364), Claimant (ht 2021 000411): Monument Two Limited
Jurisdiction
England and Wales
Judgment Date
21 December 2021
Procedural Posture
Consolidated Part 7 and Part 8 Claims (tcc) / Judgment After Hearing of Enforcement Application and Part 8 Claim
Outcome
Application by Fairgrove to enforce Tomlin Order succeeded; funds to be paid to Fairgrove.
Legal Topics
Enforcement of Adjudicator's Decision, Interpretation of Settlement Agreements, Tomlin Orders, Escrow Arrangements, Summary Judgment, Declaratory Relief
Contract Law Construction Law Civil Procedure Enforcement of Adjudicator's Decision Interpretation of Settlement Agreements Tomlin Orders Escrow Arrangements Summary Judgment +1 more

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Parties

Fairgrove Homes Limited

Claimant (ht 2020 000364), Defendant (ht 2021 000411)

Monument Two Limited

Defendant (ht 2020 000364), Claimant (ht 2021 000411)

Procedural Posture

Consolidated Part 7 and Part 8 Claims (tcc) / Judgment After Hearing of Enforcement Application and Part 8 Claim

Legal Issues

  1. 1 Whether the Part 8 Claim constituted proceedings within paragraph 3 of the Tomlin Order Schedule
  2. 2 Whether Fairgrove is entitled to immediate payment of funds held in escrow under the Tomlin Order
  3. 3 Proper construction of clause 2.1(d) of the Settlement Agreement

Ratio Decidendi

The Part 8 Claim did not constitute proceedings to determine liability under clause 2.1(d) of the Settlement Agreement as required by paragraph 3 of the Tomlin Order Schedule, because it did not seek a final determination of entitlement to the £50,000. Therefore, under the Tomlin Order, the funds held in escrow must be paid to Fairgrove without set off or deduction. Even if the Part 8 Claim had qualified, the proper construction of clause 2.1(d) is that Fairgrove was entitled to payment of £50,000 by 30 April 2020 regardless of the final account.

Court Disposition

Application by Fairgrove to enforce Tomlin Order succeeded; funds to be paid to Fairgrove.

Orders

  • Escrow agent to pay funds held under Tomlin Order to Fairgrove without set off or deduction.
  • Part 8 Claim by Monument is otiose; court to hear parties on precise terms of order and costs.