{"id":637346,"date":"2026-04-21T16:26:57","date_gmt":"2026-04-21T14:26:57","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/"},"modified":"2026-04-21T16:26:57","modified_gmt":"2026-04-21T14:26:57","slug":"sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/","title":{"rendered":"Sheffield Teaching Hospitals NHS Foundation Trust v Hadfield Healthcare Partnerships Limited & Ors"},"content":{"rendered":"
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1. MRS JUSTICE JOANNA SMITH: This is an application dated 4 April 2023, made by the First Part 20 Defendant (\u201cKajima\u201d) against the Defendant and Part 20 Claimant (\u201cHadfield\u201d), for an order for the hearing of preliminary issues and for expedition of that hearing. 2. The proposed preliminary issues may be described as follows: (iii) The Dispute Issue This is an issue of contractual construction arising pursuant to paragraph 50.1 of Hadfield\u2019s Particulars of Additional Claim. Put shortly, the question is whether Hadfield\u2019s claims against Kajima fall within the definition of \u201cDispute\u201d set forth in a standstill agreement entered into between all of the parties to these proceedings on 30 January 2018 (\u201cthe First Standstill Agreement\u201d). Hadfield\u2019s primary case is that they do; however Kajima contends that they do not, such that those claims are time-barred. (ii) The Clause 9.7 Issue This is another issue of contractual construction raised in paragraphs 29 and 44 of the Particulars of Additional Claim arising in respect of clause 9.7 of the Construction Contract between Kajima and Hadfield dated 20 December 2004. It is Kajima\u2019s case that claims made in these proceedings by Hadfield against Kajima in negligence and for specific performance of obligations under the Construction Contract are time-barred by reason of the true construction of clause 9.7, which reads as follows: \u201cNotwithstanding any other provision of this Agreement, which for the avoidance of doubt shall include any indemnity or any of the other Ancillary Documents, no claim, action or proceedings shall be commenced against the Contractor after the expiry of twelve (12) years from the Actual Completion Date.\u201d (iii) The Rectification Issue This concerns Hadfield\u2019s alternative pleaded case, set out in paragraph 50.2 of its Particulars of Additional Claim, that if its claims do not fall within the definition of Dispute in the First Standstill Agreement then that agreement falls to be rectified. 3. The background to these proceedings was recently set out in the judgment of O\u2019Farrell J in Sheffield Teaching Hospital Foundation Trust v Hadfield Healthcare Partnerships Limited & Others [2023] EWHC 644 (TCC) at [2]-[23] and I gratefully adopt that general description. There is no need for me to set it all out again here; I shall assume that readers of this judgment are familiar with, and have read, O\u2019Farrell J\u2019s judgment. However, for present purposes, I need to address the context in which the application for a preliminary issues hearing is made. 4. These proceedings were commenced by the Claimant in December 2020 and served in April 2021. Hadfield made Part 20 claims against both Kajima and Veolia. The parties are proceeding in accordance with a timetable to trial set out in an order made by Fraser J on 28 July 2022 and subsequent orders. Disclosure was provided towards the end of last year and witness statements were exchanged on 3\u00a0March 2023. The parties are currently engaged in the expert witness stage of the directions. A Pre Trial Review is fixed for 7 July 2023 and the trial is listed to take place over six weeks commencing on 9 October 2023. 5. Against that background, Kajima issued an application for summary judgment\/strike out in respect of the Dispute Issue and the Clause 9.7 Issue (amongst others) in January 2023. That application was heard by O\u2019Farrell J over two days on 7 and 8 March 2023. The Rectification Issue was not expressly raised as part of the application at that time owing to the fact that Kajima understood from a response to a Request for Information provided by Hadfield that it intended to serve factual evidence from witnesses in support of its rectification case. It is clear from the judgment of O\u2019Farrell J that the court was aware that rectification was an outstanding issue. Indeed it is worth noting at this point that by the time of the hearing, Kajima knew that, in fact, contrary to the terms of its RFI response, Hadfield had served no witness evidence in support of its rectification case. This did not affect the approach that was taken to the hearing by Kajima, although an application was subsequently made to the court after the hearing, inviting it to delay handing down judgment, pending the hearing of a new application for summary judgment\/strike out in relation also to the Rectification Issue. This application was overtaken by events and is no longer pursued. 6. In her judgment handed down on 22 March and not appealed, O\u2019Farrell J dismissed the application in respect of the Dispute Issue and the Clause 9.7 Issue. In so doing, she decided (at [47]) that Hadfield\u2019s case on the Dispute Issue was arguable with more than a fanciful prospect of success, and she made clear that its determination would necessitate an investigation into the intentions of the parties by reference to the factors identified in Arnold v Britton [2015] UKSC 36, including consideration of the factual matrix evidence. The judge noted the available factual evidence as to the background to the First Standstill Agreement and went on to observe (at [48]) that: \u201cIn the absence of full documentation and cross-examination on these topics, the court is unable to reach a concluded view as to any common intention of the parties in respect of the scope of the First Standstill Agreement.\u201d She also noted (at [49]) that even if Kajima were to succeed on the Dispute Issue, the court would be required to consider the same matters in addressing the alternative rectification case. 7. As for the Clause 9.7 Issue, the judge dealt with this shortly at [53], determining that this issue was not capable by itself of resolving the outstanding limitation issues between the parties and that, \u201c[g]iven that Hadfield\u2019s case [as to the Dispute Issue] is arguable\u2026and there is a further arguable dispute based on rectification\u201d, there would be no benefit to be gained from adjudicating on the meaning or scope of clause 9.7 of the Construction Contract in isolation or in advance of a full trial. The Preliminary Issues Application 8. Notwithstanding that O\u2019Farrell J has recently determined that the Dispute Issue and the Clause 9.7 Issue must go to trial, Kajima now invites the court to order a preliminary issues hearing to determine the very same issues. In short, it does so in circumstances where Hadfield has served no witness evidence in support of its rectification case and Kajima is now of the view that the three issues it has identified in its application are not only capable of being dealt with at a short two-day hearing, with little, if any, live witness evidence, but also that if they are all determined in its favour, they will have the effect of bringing its involvement in the proceedings to an end. Mr\u00a0Hargreaves KC, for Kajima, confirmed during the hearing today that if Kajima were to succeed on all three issues, it would not pursue its multimillion pound counterclaim against Hadfield and separate proceedings involving Veolia would be resolved. Approach to the Application 9. It is common ground that the exercise for the court on an application of this sort requires it to weigh a variety of competing factors in the balance. The court has a broad discretion actively to manage cases in accordance with the overriding objective pursuant to CPR 1.4(1) and 3.1, and, in appropriate circumstances, such active case management may point towards the desirability of preliminary issues. However, it is always important for the court to examine any proposal for the hearing of preliminary issues with care so as to evaluate the potential merits and demerits of adopting such a course. 10. Both parties referred me to the provisions of the new TCC Guide at paragraphs 8.1 to 8.7. I need not set these out in full in this judgment, but I have regard to them all in the exercise of my discretion, including the need to give due weight to the views of the parties in deciding whether a preliminary issues hearing would be beneficial. In setting out my conclusions on the application, I shall refer to them as necessary. Decision 11. Notwithstanding Mr Hargreaves\u2019 attractive submissions, I am not persuaded that it would be consistent with the overriding objective or the guidance set out in the TCC\u00a0Guide to order a preliminary issues hearing in this case. My reasons are as follows. (i) Timing 12. The application for a preliminary issues hearing is made late in the proceedings by Kajima. Whilst I accept there would appear to be a legitimate reason for that (namely the late discovery that Hadfield intends to call no witness evidence in support of its rectification case), nonetheless Mr Churcher, on behalf of Hadfield, was right to say that in the ordinary course parties are encouraged to raise the prospect of preliminary issues at a relatively early stage in the proceedings, i.e. at the first or second Case Management Conference. The rationale for this approach is of course that the potential costs-saving benefits of hearing preliminary issues diminishes over time as the action progresses towards trial. 13. Here, the proposal is that a hearing should be ordered which would be listed for two days on an expedited basis prior to the end of July 2023. The practical effect of that proposal is that it would be most unlikely that a judgment would be handed down much before the commencement of the autumn term, at which point the trial would be about to begin. In my judgment, that would be a most unsatisfactory state of affairs. No costs would be saved in preparation for trial and the receipt of the judgment would be capable of distracting severely from the parties\u2019 work in getting ready for trial. Preparations for trial would be required to take place having regard to the potential that the judgment on the preliminary issues might go either way. From a case management perspective, I do not consider this to be desirable or fair to the parties. (ii) Distraction from Trial Preparation 14. I have already referred to the potential for distraction at the time of receipt of the judgment, but there is clearly an even greater potential for disruption to be caused to the parties in the context of their compliance with the timetable for trial set by the court. I agree with Mr Churcher\u2019s submission that a two-day preliminary issues hearing would be likely to divert significant resources away from preparing for trial, in circumstances where, as I shall return to in a moment, significant resources have already been spent in looking at two of those issues very recently. The PTR is fixed for 7 July 2023 and yet, if a preliminary issues hearing were to be ordered, that is just the time at which the parties involved in that hearing would be having to gear up for it. A PTR taking place at a time when there is an outstanding application which could have a significant effect on the trial is obviously undesirable from a case management perspective. No one has suggested how this obvious difficulty could satisfactorily be resolved. (iii) The Effect of an Appeal 15. Paragraph 8.7.1 of the TCC Guide requires the court to have regard to the effect of any possible appeal against the preliminary issues judgment and the concomitant delay caused. Owing to the timing of the trial in October 2023, I consider ordering a preliminary issues hearing very shortly before trial, as I am invited to do, would risk creating potential difficulties were the losing party on the preliminary issues hearing to pursue an appeal. The outcome of the proposed preliminary issues would very likely be suitable for challenge in the Court of Appeal and, particularly where issues of contractual construction are concerned, there is always real scope for the Court of Appeal to take a different view from the first instance judge. Although Mr Hargreaves, perhaps unsurprisingly, sought to play down any difficulties that might arise in this respect, I do not consider it to be unrealistic to suppose that, in the event of an appeal, the possibility of delaying the trial might raise its head, thereby potentially causing very significant delay and wasted costs on all sides. If the Court of Appeal were to determine one or more of the issues in Hadfield\u2019s favour, then the parties would potentially be back at square one. (iv) The Existing Judgment 16. Although the two construction issues are in theory potentially suitable for resolution by way of a preliminary issues hearing (and the TCC Guide at paragraph 8.3I recognises disputes over the construction of a contract as disputes which are commonly resolved by way of preliminary issues), in this case Kajima has already elected to make an application for summary judgment\/strike out in respect of those issues. The determination of that application required two days of court time, only a couple of months ago, during which the court was addressed on, and considered in some detail, the merits of those issues. It decided that both issues should go to trial. 17. Although Mr Hargreaves submits that Kajima is not seeking to have a second bite of the cherry with its application to pursue these points at a preliminary issues hearing, I am afraid that I cannot agree. I understand why Kajima arrived at the decision to address the construction issues by way of an application for summary judgment\/strike out, but, having elected to pursue and maintain that course, even after exchange of witness statements (when Hadfield\u2019s lack of witness evidence in support of its rectification case became apparent), it is again unattractive from a case management perspective for it to seek, effectively, to rerun the same points with a view to obtaining an early final determination. 18. Mr\u00a0Hargreaves submits that O\u2019Farrell J was mistaken about the extent of the factual matrix evidence and the cross-examination that will be required in respect of the Dispute Issue, but neither he, nor Mr Churcher, was present at the hearing before O\u2019Farrell J, and her decision has not been appealed. I am certainly not in a position to gainsay it, and I note that a need for detailed assessment of the evidence of the type she has identified will often be something that is best done at trial. 19. I also bear in mind that, although Mr Hargreaves places the Rectification Issue front and centre of his submissions owing to the fact that the background to that issue explains why no application for a preliminary issues hearing has previously been made, Hadfield\u2019s primary case turns on the Dispute Issue, an issue in respect of which they have only just successfully fought off a summary judgment\/strike out application. I do not consider that it would be fair to Hadfield to face yet another application on the same points so close to trial. 20. During the course of the hearing, Mr Hargreaves spent a little time addressing the merits of the three proposed preliminary issues, with a view to showing me both the strengths of Kajima\u2019s case and the likelihood that these issues could be resolved relatively swiftly over the course of a two-day hearing. However, for the purposes of what is effectively a case management decision, I am certainly not in a position to go behind O\u2019Farrell J\u2019s decision that Hadfield\u2019s case on the Dispute Issue is arguable and not fanciful. If and in so far as the subtext of Mr Hargreaves\u2019 submissions was that Kajima is very likely to win on these issues such that it would be in the interests of justice for the court to give it the opportunity to have these matters resolved before trial, I am certainly not in a position to arrive at any such conclusion. (v) Traditional Drawbacks to Preliminary Issues Hearings 21. I accept that many of the traditional drawbacks to preliminary issues hearings identified in the TCC Guide at 8.1.5 are not present in this case. There is little prospect of evidence being duplicated or of the same witnesses attending to give evidence at two different hearings. Indeed, it seems entirely possible that there would be no live evidence at all at any preliminary issues hearing, although Mr Hargreaves was careful not to rule out the possibility that one of his witnesses might be called to give evidence. Similarly, there seems to be no prospect of findings being made at a preliminary issues hearing which would be affected by evidence given at the trial. With the exception of Kajima, none of the parties has served any witness evidence which appears to address the points raised by the proposed preliminary issues. 22. It was also not suggested that the prospect of a preliminary issues hearing might delay the commencement of ADR or settlement negotiations. 23. However, approaching the matter with care, I do not consider that these factors weigh more heavily in the balance than the factors I have already identified. Were this application being made at a much earlier stage in the proceedings, then the decision might be different, but this court must have regard to all of the prevailing factors at the time the application is made. That it is suggested that Hadfield is to blame for the position in which Kajima now finds itself also does not seem to me to outweigh those factors, which are rooted in effective, fair and efficient case management. (vi) The Significance of the Preliminary Issues 24. I accept that if Kajima were to win on all three proposed preliminary issues then it would appear that its involvement in the trial will cease and that there will therefore be a significant saving in the costs of the trial, something which plays to the significance of the proposed preliminary issues (see paragraph 8.2.1 of the TCC Guide). Whether the entire litigation would be brought to a close (as is suggested in Mr Hargreaves\u2019 skeleton argument) is difficult to say, but I accept that the fact Kajima would no longer be involved is a substantial factor to be weighed in the balance in favour of ordering a preliminary issue. 25. However, as Mr Churcher rightly emphasises and Mr Hargreaves accepts, Kajima would need to win on all three distinct issues for this advantage to be achieved. Loss on any one of the issues would mean that Kajima would still be involved in the trial and there would be no real advantage to having a preliminary issues hearing. In my judgment, this is too much of a risk given (i) the stage the proceedings have reached; and (ii) the fact that the court has already determined that two of the three issues should go to trial and has described the Rectification Issue as arguable. Once again, it seems to me that the timing of this application is highly relevant from a case management perspective. Whilst success on all three proposed preliminary issues would apparently preclude Kajima\u2019s continuing involvement at trial, it would not save any real time or money in the pretrial preparation. Here the vast majority of the costs of trial, save for the trial itself, are likely to have been spent before any final determination on the proposed preliminary issues. 26. Taking into account all of the factors I have identified, I do not consider it to be just or in accordance with the overriding objective to order a preliminary issues hearing. During the course of the hearing today Mr Hargreaves candidly acknowledged that applying to the court to order a preliminary issues hearing in the circumstances of this case was a \u201cbig ask\u201d. For all the reasons I have given, I consider him to be right about that. It is, in my judgment, too much of an \u201cask\u201d. 27. Although I have sympathy with the position in which Kajima finds itself, which I accept is not all of its own making, and whilst I note that Mr Churcher was hardly vociferous on the subject of the merits of Hadfield\u2019s claim for rectification or its evidence in support, having weighed all the relevant factors in the balance, I consider the only appropriate and just order to be to dismiss Kajima\u2019s application for the hearing of preliminary issues. In the circumstances, there is no need for me to consider the related application for any preliminary issues hearing to be expedited. (After further submissions) 28. I am now called upon to deal with the principle of where costs should lie following my dismissal of the application brought by Kajima for a preliminary issues hearing. Mr\u00a0Churcher says that costs should follow the event in accordance with the usual rule. Mr Hargreaves, in response, accepts that Kajima lost the application, but nonetheless invites the court to make a rather more nuanced order, namely that Hadfield should have its costs in the case. He contends that if ultimately Kajima succeeds on all of the issues it has identified in its application, then that will vindicate its decision to make this application and will show that such decision was entirely realistic, even though Kajima was ultimately unsuccessful on the day. 29. In circumstances where I have expressed sympathy in my judgment for Kajima\u2019s position, and have some disquiet around the lack of any assistance from Hadfield in relation to the merits of its claim for rectification or its available evidence in support of that claim, it does seem to me that the fair order, in the rather unusual circumstances of this case, is for Hadfield to have its costs in the case rather than its costs of the application. I will make an order to that effect. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Unit 1 Blenheim Court, Beaufort Business Park, Bristol BS32 4NE Email: civil@epiqglobal.co.uk This transcript has been approved by the Judge<\/p>\n<\/div>\n

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1. MRS JUSTICE JOANNA SMITH: This is an application dated 4 April 2023, made by the First Part 20 Defendant (\u201cKajima\u201d) against the Defendant and Part 20 Claimant (\u201cHadfield\u201d), for an order for the hearing of preliminary issues and for expedition of that hearing. 2. The proposed preliminary issues may be described as follows: (iii) The Dispute Issue This is…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[8445],"kji_chamber":[],"kji_year":[24566],"kji_subject":[7638],"kji_keyword":[7919,7916,8356,27619,7917],"kji_language":[7611],"class_list":["post-637346","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-high-court-technology-and-construction-court","kji_year-24566","kji_subject-famille","kji_keyword-application","kji_keyword-hearing","kji_keyword-issues","kji_keyword-kajima","kji_keyword-preliminary","kji_language-anglais"],"yoast_head":"\nSheffield Teaching Hospitals NHS Foundation Trust v Hadfield Healthcare Partnerships Limited & Ors - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sheffield Teaching Hospitals NHS Foundation Trust v Hadfield Healthcare Partnerships Limited & Ors\" \/>\n<meta property=\"og:description\" content=\"1. MRS JUSTICE JOANNA SMITH: This is an application dated 4 April 2023, made by the First Part 20 Defendant (\u201cKajima\u201d) against the Defendant and Part 20 Claimant (\u201cHadfield\u201d), for an order for the hearing of preliminary issues and for expedition of that hearing. 2. 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MRS JUSTICE JOANNA SMITH: This is an application dated 4 April 2023, made by the First Part 20 Defendant (\u201cKajima\u201d) against the Defendant and Part 20 Claimant (\u201cHadfield\u201d), for an order for the hearing of preliminary issues and for expedition of that hearing. 2. The proposed preliminary issues may be described as follows: (iii) The Dispute Issue This is...","og_url":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/","og_site_name":"Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris","twitter_card":"summary_large_image","twitter_misc":{"\u041f\u0440\u0438\u043c\u0435\u0440\u043d\u043e\u0435 \u0432\u0440\u0435\u043c\u044f \u0434\u043b\u044f \u0447\u0442\u0435\u043d\u0438\u044f":"18 \u043c\u0438\u043d\u0443\u0442"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"WebPage","@id":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/","url":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/","name":"Sheffield Teaching Hospitals NHS Foundation Trust v Hadfield Healthcare Partnerships Limited & Ors - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris","isPartOf":{"@id":"https:\/\/kohenavocats.com\/ru\/#website"},"datePublished":"2026-04-21T14:26:57+00:00","breadcrumb":{"@id":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/#breadcrumb"},"inLanguage":"ru-RU","potentialAction":[{"@type":"ReadAction","target":["https:\/\/kohenavocats.com\/ru\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sheffield-teaching-hospitals-nhs-foundation-trust-v-hadfield-healthcare-partnerships-limited-ors\/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/kohenavocats.com\/ru\/avocats-en-droit-penal-a-paris-conseil-et-defense-strategique\/"},{"@type":"ListItem","position":2,"name":"Jurisprudences","item":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/"},{"@type":"ListItem","position":3,"name":"Sheffield Teaching Hospitals NHS Foundation Trust v Hadfield Healthcare Partnerships Limited & Ors"}]},{"@type":"WebSite","@id":"https:\/\/kohenavocats.com\/ru\/#website","url":"https:\/\/kohenavocats.com\/ru\/","name":"Kohen Avocats","description":"Ma\u00eetre Hassan Kohen, avocat p\u00e9naliste \u00e0 Paris, intervient exclusivement en droit p\u00e9nal pour la d\u00e9fense des particuliers, notamment en mati\u00e8re d\u2019accusations de viol. 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