Atlantic Projects Company (UK) Limited v EP NI Energy Limited and EP UK Investments Limited
| Court | High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court (KBD), Rolls Building |
| Judge | Deputy High Court Judge Adrian Williamson KC |
| Judgment | 24 April 2026, approved transcript |
| Jurisdiction | England and Wales |
| Claimant | Atlantic Projects Company (UK) Limited, the contractor |
| Defendants | EP NI Energy Limited, the employer; EP UK Investments Limited |
| Contract | Design, procurement and construction of works for a power station development in Northern Ireland, made in October 2021, original price of the order of 73 million pounds |
| Application | Trial of four preliminary issues on the contractor's termination |
| Case reference | HT-2025-000083 |
| Outcome | Application dismissed |
Summary
A contractor on a Northern Ireland power station gave notice of termination on 19 April 2024, relying principally on alleged failures by the employer to pay, and left site. It claims about 50 million pounds; the employer claims more than 100 million pounds.
The employer wanted four questions about the termination tried first. The court dismissed the application on six grounds. The ruling is procedural: the termination argument goes to the main trial with everything else.
Background and facts
The first defendant was a special purpose vehicle formed for the development. It engaged the contractor in October 2021 to design, procure and construct works for the power station, at a contract price originally of the order of 73 million pounds.
Clause 14 set out a payment regime broadly in line with the Housing Grants Act 1996 as amended, with pay less notices served by the engineer in effect on the employer's behalf.
Clause 16.2.1(a) let the contractor terminate if it did not receive an amount properly due of 100,000 pounds or more within ten days after the relevant final date for payment. The contractor relied on that limb and pleaded non-payment in five respects. The four proposed issues were drawn from that pleading.
Clause 17.6 capped the employer's recovery at 100 per cent of the contract price unless there was wilful default and gross negligence, and the employer runs a wilful default case.
The issue
The employer said the questions were narrow and largely points of law. It put the value of a decision on termination at 8 million pounds, the higher of the two estimates before the court, said the answer would bear on its wilful default case, and said any appeal could be fitted in before trial.
The contractor said that without a schedule of agreed facts it was unwise to embark on preliminary issues, that the wilful default case had many limbs, and that both sides accepted a seven week trial was needed in any event. It pointed out that the pleaded dispute over the termination also runs to waiver, capricious conduct and other matters that can only be tried on evidence.
The decision
The judge took the test from paragraph 8.2.1 of the TCC Guide. A preliminary issue should be capable, if decided a particular way, of resolving the proceedings or a large part of them, cutting the scope and cost of the main trial, or improving the chance of settlement.
It does not seem to me that the criteria identified in the TCC guide have been satisfied in the present case.Deputy High Court Judge Adrian Williamson KC, paragraph 17
First, the issues were not as factually simple as the employer said. The first asked whether the employer failed to pay a sum of about 329,000 pounds due on payment milestone one. The employer's own solicitor's evidence on it raised possible questions of fact. The judge agreed that without a schedule of agreed facts it was potentially unwise to embark on preliminary issues.
Second, the issues would not resolve the proceedings or a large element of them. Taking the employer's higher estimate of 8 million pounds, the judge said
that figure seems to me to be a drop in the ocean in the context of the size of claims which I have indicated.Deputy High Court Judge Adrian Williamson KC, paragraph 22
He accepted that an unlawful termination might be an ingredient of the wilful default case under clause 17.6, but that case had many limbs and none of the proposed issues was likely to shed much light on it.
Third, the trial would not shrink. Both sides agreed a seven week trial was needed in any event, and the employer's submission that the issues could almost be decided on the day undermined any claimed saving. Fourth, resolving narrow and peripheral points would do little for settlement.
It seems to me that the prospects of settlement are going to depend much more upon where the merits lie in relation to the broader contours of claims and counterclaims.Deputy High Court Judge Adrian Williamson KC, paragraph 25
Fifth, even pure points of law carried a real prospect of appeal, and the judge thought it optimistic to say an appeal could be accommodated in the timetable before trial. Sixth, the pleaded matters on termination, including waiver and capricious conduct, required factual evidence, so taking one or two points of law out of the termination case would not help the parties much. The application was dismissed. Borrowing the words of an older authority, the judge held that
to order the proposed preliminary issues would be a treacherous shortcut in the present case.Deputy High Court Judge Adrian Williamson KC, paragraph 28
Practical implications
Termination for non-payment looks like a tidy question of law. It rarely is. Whether an amount was properly due, whether a pay less notice was valid and when the final date for payment fell all turn on documents and events that the other side will dispute. The court will test the application against the evidence already filed, including your own.
Proportion decides these applications. Set the value of the issue against the value of the whole dispute. Eight million pounds sounded large on its own and was dismissed as small against claims of about 50 million and more than 100 million pounds.
A party that wants a preliminary issue must also show it will shorten the main trial. Where a trial of fixed length is needed anyway, and the issue sits beside pleaded waiver and conduct arguments that need witnesses, the application has little left.
Practice points
- Before applying for a preliminary issue, test it against each limb of paragraph 8.2.1 of the TCC Guide and be ready to show at least one is met on the numbers.
- Agree a schedule of facts with the other side first. Without one, the court may treat the application as unwise from the outset.
- Check your own witness evidence. A statement filed in support can itself show that the issue turns on facts.
- Put a value on the issue and compare it with the claims and counterclaims as a whole, because the court will.
- Do not tell the court the issue is so simple it could be decided today. That undercuts any saving in time or cost.
- Build in the time for an appeal. A decision on a point of law can be appealed, and the trial date may not survive it.
- Where a termination dispute under a clause like 16.2.1(a) also involves pleas of waiver or conduct, expect the whole of it to go to trial with the evidence.