Better Together: TCC and FTT provide blueprint for joint management of BSA related proceedings

In the first joint hearing of its kind, Mr. Justice Constable (judge in charge of the Technology and Construction Court ("TCC")) and Judge Siobhan McGrath (President of the First-Tier Tribunal (Lands Chamber) ("FTT")) have handed down judgment in Wallace Estates Limited v Durkan Estates Limited [2026] EWHC (TCC) / LON/00AH/BSB/2025/0611, providing initial guidance on the joint case management and hearing of concurrent TCC and FTT proceedings of related Building Safety Act 2022 ("BSA") claims.

Background

The TCC dispute concerns a Remediation Agreement dated 1 July 2024 ("RA") under which Durkan Estates Limited ("Durkan") agreed with Wallace Estates Limited ("Wallace") to remedy, at its own cost, certain relevant defects within the meaning of section 120 of the BSA at Centrillion Point in Croydon. The defects are the subject of a Remediation Order dated 4 January 2024 ("RO") imposed against Wallace by the FTT under section 123 of the BSA.

On 26 June 2025, Wallace served a notice purporting to terminate the RA. Wallace subsequently commenced FTT proceedings on 29 September 2025 for a Remediation Contribution Order ("RCO") under section 124(1) of the BSA (the “FTT Proceedings”), claiming approximately £13.6 million against Durkan and its parent company Durkan Holdings Limited (together, the "Durkan Entities"). Durkan then issued TCC proceedings on 6 February 2026 seeking a declaration that the termination was unlawful and claiming damages (“TCC Proceedings”). Wallace counterclaimed for declarations that its termination was lawful and additionally claimed further defects at the development not caught by the RO. An application for summary judgment of the TCC Proceedings was recently dismissed by Mr. Justice Constable sitting in the TCC (see our previous Legal Update, TCC Refuses Reverse Summary Judgment on Claim for Repudiatory Breach of Remediation Agreement).

The parties therefore found themselves litigating closely connected BSA issues in relation to the same property across two separate jurisdictions: the lawfulness of the termination of the RA in the TCC, and the RCO claim in the FTT. There is significant overlap of issues between the two sets of proceedings.

The Applications for Joint Case Management

Durkan had applied to both TCC and the FTT for joint case management of the TCC Proceedings and the FTT Proceedings (together the "Proceedings"). Durkan’s application in the TCC was lodged simultaneously with the claim dated 6 February 2026 and sought "an early joint case management hearing in the TCC Proceedings and the FTT Proceedings." Durkan’s application to the FTT, dated 20 May 2026, again sought a joint Case Management Conference in respect of the Proceedings.

On 12 February 2026, the FTT had rejected an informal application by the Durkan Entities for a joint management hearing, noting that it was "not immediately apparent" that joint management would be advantageous to advancement of the claim and invited a formal application. Following the dismissal of Wallace's reverse summary judgment application on 30 July 2026 by Mr. Justice Constable, Wallace agreed to joint case management and accepted that the existing FTT listing for November 2026 would need to be vacated.

The Fourth Edition TCC Guide and BSA Proceedings

The judgment structures the joint hearing in line with the framework of the newly issued Fourth Edition of the TCC Guide dated 1 July 2026, which came after the commencement of Proceedings and listing of the CMC. Section 9 of the new TCC Guide reflects the work of the TCC/BSA Working Group to promote consistency of approach to BSA issues across the TCC and the FTT.

The Court endorsed the rationale underpinning Section 9—namely "consistency of factual findings, the avoidance of duplicated evidence and cost, and a single, or joint, judicial mind across both sets of proceedings." Notably, the Court observed that whilst the TCC Proceedings did not fall strictly within the definition of "TCC BSA Proceedings" in the TCC Guide (which attaches to proceedings under sections 130 and 132 of the BSA), the general principle is plainly applicable to a wider class of BSA-related disputes and the TCC Guide will likely be updated to reflect this in due course.

Benefits of Joint Case Management

The Court and the FTT endorsed the parties agreed approach to joint management and a single trial, particularly considering the significant overlap of issues and facts between the Proceedings, and highlighted significant benefits including:

• Avoiding inconsistent findings: A joint hearing would ensure that factual determinations are consistent across both jurisdictions, eliminating the risk of contradictory outcomes on the same underlying facts.
• Reducing duplicative costs: Joint case management avoids the parties having to go through disclosure, witness statements, and expert evidence processes twice across separate proceedings.
• Proportionate use of court and tribunal resources: A single trial with a unified timetable avoids duplication of judicial time and promotes expedition.

Key Differences Between TCC and FTT Procedures

The judgment contains important guidance on how the differing procedural rules of the TCC and FTT may be reconciled in a joint hearing:

Costs

One of the most significant differences between the forums is the costs regime. The FTT is, in essence, a no-costs jurisdiction save for costs recoverable under Rule 13 for unreasonable conduct. By contrast, the ordinary rule in the TCC is that "costs follow the event" with detailed rules under CPR Parts 36 and 44.

The Court and FTT addressed this discrepancy by endorsing the parties’ agreement to utilise separate costs codes for: (a) work done solely in relation to the FTT Proceedings; (b) work done solely in relation to the TCC Proceedings; and (c) work done jointly in relation to the Proceedings. This approach would allow for potential apportionment of costs between the Proceedings at the end of trial, if that is considered appropriate.

Disclosure

The more onerous extended disclosure rules under Practice Direction 57AD in the TCC will primarily apply to all documents, avoiding the parties having to work to two separate and different requirements. Cross-use of documents, witness statements, and expert reports between the Proceedings is permitted by the Order which would otherwise not be possible under the FTT Rules and the CPR.

Witness Statements and Expert Evidence

There is to be one set of witness statements and one set of expert evidence covering both proceedings. Witness statements must comply with the more formal requirements of CPR Part 32 and Practice Direction 57AC, and expert evidence is governed by CPR Part 35. The Court noted that while these requirements are more prescriptive than the FTT Rules, the two regimes are "not incompatible."

Appeals

The judgment notes that appeal routes differ between the TCC and the FTT, meaning a single joint trial could give rise to two appeals in two appellate courts on the same findings of fact. However, the Court and FTT considered it was not the appropriate time or possibly forum to address the potential complications this may create.

Composition of the Court and Tribunal

By virtue of the Tribunals, Courts and Enforcement Act 2007, a puisne judge of the High Court is already a judge of the FTT without any fresh appointment being required. What is required is the concurrence of the President of the FTT (Property Chamber) as contemplated by paragraph 9.2.5 of the TCC Guide, and as given in the Order.

The Court and FTT together determined that the trial and pre-trial review ("PTR") should be heard by a TCC Judge and a separate FTT Judge, rather than a single judge sitting in both capacities. However, for procedural efficiency, general case management prior to the PTR may be conducted by a single judge capable of sitting in both the TCC and FTT.

It is usual for panels in FTT proceedings to comprise two FTT Judges and a professional member, the latter being a specialist non-legal member appointed due to their specialist expertise relevant to the case (e.g., a surveyor)  The Court and the FTT decided that a professional member of the FTT should not sit in the joint hearing on this case, as their inclusion would "add a layer of complication without significant benefit" since the professional member would be limited to decision-making about the FTT Proceedings alone and so their views would have to be isolated from decision-making in the TCC. The decision was also influenced by the fact that the Court would already have the benefit of multiple expert witnesses across a range of technical disciplines.

Key Takeaways

• Unique Hearing and Guidance: This is the first reported joint hearing and judgment by the TCC and the FTT, providing important initial guidance on how concurrent BSA-related proceedings in both jurisdictions will be managed going forward.
• The Fourth Edition TCC Guide provides the framework: Parties with concurrent TCC and FTT proceedings should familiarise themselves with Section 9 of the new TCC Guide and the Appendix L questionnaire procedure therein. Even where proceedings do not fall strictly within the TCC Guide's definition of "TCC BSA Proceedings," the general principles of joint management of related BSA proceedings are capable of broader application.
• Apply early: The judgment demonstrates the benefit of seeking joint case management at an early stage. Durkan's joint management application to the TCC effectively foreshadowed the new Section 9 procedure, prompting the same judicial intervention as would now be achieved by the TCC Guide Appendix L questionnaire.
• Significant cost and efficiency savings: Joint management avoids duplicated disclosure, witness evidence, expert reports, and trial time. Parties should factor these savings into their litigation strategy from the outset.
• Navigate the costs divide carefully: The differing costs regimes of the TCC (costs follow the event) and the FTT (essentially no-costs) require careful record-keeping. The three-way costs coding approach adopted here provides a practical model for future cases.
• Joint hearings preferred over formal consolidation: The Court favoured hearing proceedings together rather than formally consolidating them, so that each set retains its separate identity, parties, procedural rules, and judgment.
• Tribunal Composition will be case-specific: Whether the tribunal includes a professional member and whether a single judge or panel sits will depend on the circumstances. In this case, a two-judge panel without a professional member was considered appropriate.

In the joint management applications, Alice Sims of Keating Chambers, instructed by Mayer Brown International LLP, represented Durkan.