The employer, WW Gear Construction (“WW Gear”) and the contractor, McGee Group (“McGee”) entered into an amended form of the JCT Trade Contract in August 2007 (“the Trade Contract”). McGee claimed some £2.5m for work carried out, a significant proportion of which consisted of claims based on variations. A dispute arose over the meaning of the relevant variation clause in the Trade Contract and was the subject of an adjudication at the same time as WW Gear brought Part 8 proceedings seeking a declaration as to the meaning of the clause.

The Judge was of the opinion that although the court did have jurisdiction to grant a declaration in the context of an ongoing adjudication, it should exercise that jurisdiction very sparingly and only intervene in a rare case. The Judge declined to make the declaration sought primarily because the adjudicator’s decision was due two days after issue of the draft judgment. This would be an unacceptable imposition on the adjudicator and one that could result in unfairness, misunderstandings or mistakes.

The application was also held to fail as the relevant variation clause, clause 4.6, did not have the effect stated in the declaration as sought by WW Gear and the Judge considered that McGee could claim loss and expense arising from variations under clause 4.6.