Wallace v Durkan: New Guidance on Managing Parallel TCC and FTT Proceedings

As Building Safety Act disputes become increasingly common, parties will more frequently find themselves involved in related proceedings before both the Technology and Construction Court ("TCC") and the First-tier Tribunal ("FTT"). In light of this, the recent decision in Wallace Estates Ltd v Durkan Estates Ltd is particularly significant. The judgment followed the first joint hearing of the President of the FTT and a TCC judge and provides valuable guidance on how parallel proceedings concerning the same building are to be managed.

The case

Our recent blog post discusses the substantive dispute between the parties, which concerns remediation works for a residential development in Croydon. Under a Remediation Agreement entered into in July 2024 between Durkan Estates Limited ("Durkan"), the original developer, and Wallace Estates Limited ("Wallace"), the current landlord, Durkan agreed to remediate the defects at its own cost. Wallace purported to terminate the agreement in June 2025. This led to two sets of proceedings:

• FTT Proceedings, including a claim for a Remediation Contribution Order against Durkan and its parent company under the Building Safety Act; and
• TCC Proceedings in which Durkan sought declarations that Wallace's termination was unlawful and claimed damages. An application for summary judgment of the TCC Proceedings was recently dismissed (as set out in our recent blog post).

What did the Court and Tribunal decide?

The real significance of this judgment lies in the guidance it provides on the management of proceedings in the TCC and FTT. Although the parties had, between themselves, agreed that the TCC and FTT proceedings should proceed together, the joint panel took the opportunity to provide guidance on how overlapping Building Safety Act disputes should be managed in practice.

The Court and Tribunal recognised that, in this case, the two sets of proceedings involved substantially the same facts, witnesses, expert evidence and remediation issues. They identified that managing them separately would create unnecessary duplication, increase costs and risk inconsistent findings. They therefore endorsed an approach to joint case management and hearing, entailing:

• One set of witness evidence for use in both proceedings, with the evidence needing to comply with the more formal requirements of the TCC (under CPR Part 32 and Practice Direction 57AC);
• One set of expert evidence for use across both proceedings, once again needing to comply with the TCC requirements (under CPR Part 35), with a recognition that these are more formal requirements than those of the FTT;
• A single disclosure exercise for both proceedings, working to the more extensive disclosure requirements of the TCC, to avoid the need for duplication;
• Both an FTT and a TCC Judge presiding over the trial together with, in this case, no need for the inclusion of a professional member. It was found that given the overlap of issues and the fact that the parties would already be instructing technical experts, the additional complexity created by including a professional member outweighed any potential benefit in these circumstances; and
• Costs
  • The judgment recognised that whilst the FTT generally operates on a 'no costs' basis, save in limited circumstances, the TCC instead typically operates on the principle that costs generally follow the event.
  • To address this, this Order provides that parties are to maintain and utilise separate cost codes in relation to work done for the FTT and TCC proceedings as follows:
    • Work relating solely to the FTT proceedings;
    • Work relating solely to the TCC proceedings; and
    • Work done jointly for both proceedings.
  • The aim of this approach is to support the potential apportionment between the TCC and FTT proceedings if that is ultimately determined to be appropriate at the end of the proceedings.

TCC Guide

The approach adopted by the Court and Tribunal in this case is very much in line with the direction of travel reflected in the Fourth Edition of the TCC Guide, which was published only recently on 1 July 2026. 

Section 9 of the TCC Guide recognises that Building Safety Act disputes relating to the same building may give rise to proceedings in both the TCC and the FTT and encourages early consideration of how those claims should be managed together. The rationale underpinning the guidance is the same as that applied in Wallace v Durkan, which is to ensure consistency of factual findings, avoid duplicated evidence and costs, and enable a single (or joint) judicial approach across overlapping proceedings. 

Although the TCC proceedings in this case did not fall strictly within the TCC Guide's definition of "TCC BSA Proceedings", the Court considered the underlying principle to be "plainly capable of application" and suggested that the Guide may, in due course, be expanded to capture a broader range of Building Safety Act-related disputes suitable for joint management with the FTT.

What does this mean in practice?

The significance of this judgment lies in the procedural roadmap it likely provides for future Building Safety Act disputes. As the first reported joint hearing and judgment involving both the TCC and the FTT, it offers a clear indication of how parallel proceedings concerning the same building are likely to be managed going forward.

For parties involved in Building Safety Act disputes, the key message is clear: where related proceedings are progressing in both the TCC and the FTT, joint case management is now likely to be considered from an early stage, with a view to avoiding duplication, reducing costs and ensuring consistency of factual findings. While the precise approach will always depend on the facts of the case, Wallace v Durkan provides a clear indication of the direction of travel and a useful procedural roadmap for future building safety litigation.