On 19 February 2025, the Technology & Construction Court handed down judgment in Redrow plc v Secretary of State for Housing, Communities and Local Government ([2025] EWHC 335 (TCC)), granting the Defendant’s application to strike out the claim.
The claim concerned the grant of additional funding from the Building Safety Fund for a residential development currently undergoing cladding remediation work. Following unsuccessful judicial review proceedings, the Claimant developer, Redrow, had brought a claim in the TCC in relation to its contract with MHCLG incorporating the Self-Remediation Terms (as used with many other developers across the industry). Redrow sought declarations that the grant of additional funding was ineligible and that it would not be liable for reimbursement.
MHCLG brought an application to strike out the claim on the basis that the claim was contrary to the contract and SRT which stipulated how and when any such challenge could be brought and the limited permitted grounds for doing so. In particular, the SRT provided that funding decisions were a matter solely for the discretion of MHCLG, and set out a procedure under which challenges are to take place after the remediation works are complete and a demand for reimbursement of the final costs has been issued.
The Court (Mr. Roger ter Haar KC, sitting as Deputy High Court Judge) granted the application and struck out the claim. It held that the parties’ contract provided for a self-contained code which provides Redrow’s sole right to challenge MHCLG’s funding decisions, and that the claim was contrary to this (both as to timing and as to claimed grounds). The Court emphasized the intended purpose of the contractual scheme was to facilitate speed of decision-making on funding decisions for remediation works, and that the claim would be contrary to MHCLG’s right to full control, oversight and discretion with regard to approving any such cost overruns.
The Court also addressed arguments from the Claimant that the claim should not be struck out as it was seeking declaratory relief, which is a discretionary remedy, and which can be claimed even before a legal cause of action has accrued. Noting case law recommending a cautious approach should be taken with claims for ‘negative declarations’ (i.e. where a potentially paying party pre-emptively seeks a declaration that it will not be liable), the Court held that granting a declaration in a manner contrary to the parties’ agreement is not an available way of resolving their dispute.
4 New Square Chambers’ Paul Cowan acted for the successful defendant.
