The decision of Justice Constable and Judge Siobhan McGarth in Wallace Estates Ltd v Durkan Estates Ltd & Anor [2026] EWHC 2133 (TCC) marks the first joint Building Safety Act case ("BSA") to be heard by the Technology and Construction Court ("TCC") and the First-tier Tribunal ("FTT").
This is the result of the work undertaken by the TCC/BSA Working Group to promote consistency of approach to BSA issues across both courts as well as the recent updates to the TCC Guide, in particular paragraph 9.2.5 of that Guide ,which now deals with the joint management of cases spanning the TCC and FTT.
The merger of the two courts reflected in Wallace and paragraph 9.2.5 of the TCC Guide is limited to procedural matters and reinforces that the principles underpinning both the overriding objective CPR 3.1(2) and the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 are aligned in promoting costs efficiency and proportionality.
That said, Wallace may raise the question of whether further alignment could develop over time between the two courts. As BSA litigation continues to evolve, there may be pressure for common approaches to statutory concepts to be taken, in addition to the joint procedural approach.
Background
The dispute arose from remedial works required at Centrillion Point in Croydon. Wallace, as a developer, had been subject to a Remediation Order dated January 2025 requiring those works to be completed by September 2025. Wallace subsequently engaged Durkan to undertake the works at their own cost in July 2024. Under this agreement, Durkan was to complete the remedial works by September 2025.
Due to delays in receiving approval from the Building Safety Regulator preventing the commencement of works, Wallace applied to the FTT in June 2025 for an extension to comply with the Remediation Order, which was ultimately denied. Wallace consequently terminated its agreement with Durkan and commenced proceedings in the FTT seeking a Remediation Contribution Order ("RCO") against Durkan and its parent company in September 2025. Shortly thereafter in February 2026, Durkan issued proceedings in the TCC seeking damages arising from Wallace's alleged unlawful termination of the remediation agreement.
As such, both sets of proceedings concerned the same remedial works to Centrillion Point and many of the same factual issues, substantially the same parties, although Durkan's parent company was only a party to the RCO Application.
At the time of issuing, Durkan sought a joint case management conference such that it could be determined how best to manage both sets of proceedings. Wallace initially resisted the proposal for joint case management, however following the dismissal of its reverse summary judgment application in the TCC proceedings, ultimately agreed to it.
At the hearing it was determined that both proceedings could be heard at one trial, by one judge, and the proceedings would be governed by both sets of rules which apply to TCC and the FTT proceedings.
Benefits of joint case management
The benefit of joint case management as discussed in Wallace was to avoid duplication both in terms of cost and time/resources. It was recognised that the separate proceedings would involve substantially the same issues, facts, witnesses and experts. Separate actions would have required duplicate disclosure exercises, witness statements, expert reports and hearings, creating a duplication of costs for all parties.
As per the draft order attached to the Judgment, disclosure will be co-ordinated, witness evidence will be prepared once for use in both proceedings, expert evidence will be shared across the claims and factual findings made at the joint trial will bind all parties across both sets of proceedings.
Although not discussed in Wallace, itself, the joint approach also reduces the risk of inconsistent findings between the two courts which should help achieve an outcome that most upholds the principles of the BSA. If the claims were heard separately, one court could reach conclusions that undermine or conflict with the other's decision.
Challenges in the joint approach
Despite its obvious efficiencies, Wallace identified a number of challenges which may limit the widespread use of joint case management:
1. Delay
FTT applications under the BSA are generally intended to be resolved comparatively quickly, with Applications heard within six to twelve months. By contrast, complex TCC litigation may take considerably longer to reach trial and Wallace recognised that joint management would inevitably delay the overall resolution of the dispute.
Listing difficulties within the TCC are well known. Joint hearings introduce additional complexity because they require judicial availability across two separate courts, which may cause a delay in the hearing of cases. While frustrating for most cases, this could cause significant issues especially in those cases which require urgent remediation works. Ultimately, delaying proceedings whilst awaiting a TCC listing could impact the commencement or completion of safety critical works.
2. Different jurisdictional powers
Wallace reinforces the separate functions and powers of the FTT and the TCC under the BSA. Whilst the Judgment demonstrates that the procedural powers can be combined, it does not suggest any merger of the two jurisdictions. The parties agreed that a TCC Judge/ professional member sitting alone could not determine the claim regarding the termination notice issued against Durkan, but that a High Court Judge could sit as both a TCC and FTT Judge and determine both proceedings appropriately.
That said, the Judgment may be seen as part of the evolution of the traditional role of the FTT in determine BSA matters.
3. Costs
Unlike the TCC, where a successful party may recover some or all of its costs, the FTT permits costs recovery only in limited circumstances. Joint case management therefore raises questions about how costs should be allocated and recovered.
In Wallace it was ordered that the parties should where possible separate costs which related to the FTT or TCC proceedings accordingly. This will inevitably impose practical and logistical burdens.
Given that the dispute exceeded £10 million, costs management was not an issue in Wallace. However, for lower value disputes, effective cost management will naturally be more difficult in jointly managed cases, and could result in an increase the overall costs of litigation.
4. Appeals
Wallace noted that the two courts have different appeal systems and that the joint hearing could in theory generate appeals in different courts, depending upon whether the challenge relates to the TCC or FTT aspects of the decision. However this was not discussed in length and the appropriate court for any appeal raised will likely require further juridical consideration.
Merging of the TCC and FTT?
As BSA litigation continues to develop, joint proceedings across the FTT and TCC may become increasingly common. Wallace demonstrates the courts' commitment in promoting effective and co-ordinated case management across related TCC and FTT proceedings. Whilst joint hearings do face procedural and jurisdictional challenges, the benefits that can be achieved in terms of costs and resource efficiencies are likely to outweigh them.
While Wallace does suggest a merger of the procedural powers of the FTT and TCC, it does not represent a more substantive merger of the respective jurisdictions under the BSA. Rather, the decision maintains the separate functions of the two courts and preserves the FTT's function as a specialist and accessible tribunal that plays an important role in upholding build safety.
