ISG RETAIL LTD v FK CONSTRUCTION LTD

[2024] EWHC 878 (TCC), Technology and Construction Court, Mr Neil Moody KC sitting as a Deputy Judge of the High Court, 18 April 2024

Part 8 application – Condition precedent – Breach of contract – Waiver/estoppel – Whether case suitable for determination in Part 8 proceedings

The claimant submitted that the defendant was entitled to an extension of time only if it complied with clause 9(5) of the contract which, on the claimant’s case, contained a condition precedent such that the defendant was required to deliver to the claimant certain particulars as to the delay. The claimant submitted that the defendant had failed to comply with the condition precedent and was in breach of contract. The defendant denied that clause 9(5) created a condition precedent and, in the alternative, submitted that it had either complied with the requirements of the clause or the claimant was estopped by its conduct from relying on any non-compliance with the clause, or had waived its entitlement to rely on the clause.