Children’s Ark Partnerships Ltd v Kajima Construction Europe (UK) Ltd & Anor [2022] EWHC 1595 (TCC)

Application by Ds to strike out or set aside a Claim Form on grounds of failure to comply with a contractual ADR provision, said by the Ds to be a condition precedent to the commencement of proceedings. The real significance of the application lay in the fact that the limitation period for the claim by the Claimant ("CAP"), as extended pursuant to a series of standstill agreements, expired just over a week after issue of the Claim Form. The Ds contended that by initiating these proceedings late the Cs had deprived it of the limitation defence that would have been available had the Cs complied with its contractual obligations.

Judge was invited to set aside the claim form - which given the exprity of the limitation period - woudl have been very helpful to the Ds. However, she decided that the dispute resolution procedures in the contract were unenforceable but even if they had been enforceable she would have exercised her discretion to stay the claim to allow the DRP to be complied with.