Loughton Contracts v Amtico: summary judgement bid fails on delivery dates and exclusion clauses

The Technology and Construction Court has dismissed a summary judgement application and a strike out bid by a flooring manufacturer, while declining to extend a stay in a protective claim over failed flooring at Wembley Park. In Loughton Contracts Plc v The Amtico Company Ltd [2026] EWHC 2814 (TCC), Constable J held that Amtico had not put sufficient evidence before the court to support its limitation and contractual defences. He also granted Loughton relief from sanctions for failing to serve particulars of claim.

Loughton installed Amtico products at residential developments between 2018 and 2020 for the main contractor, McLaren Construction (Regeneration) Limited. McLaren has said in pre-action correspondence that Loughton is responsible for replacement costs of £2,907,908, but has not issued proceedings. Loughton issued its own claim on 15 October 2025 to protect its limitation position and never served particulars. O'Farrell J stayed the claim until 5 October 2026, and Loughton then sought a stay to 5 April 2027.

Amtico argued that contractual claims for goods delivered before 15 October 2019 were time barred, which it said covered 97% of orders. Only 18 orders, worth £18,677.95, were scheduled for delivery after that date, against £578,071.54 due earlier. The records, however, showed due dates rather than actual delivery dates. The judge thought it probable that much of the contractual claim would face limitation difficulties, but invoice dates and delivery receipts, which could readily have filled the gap, were not produced. Amtico bore the burden and had not discharged it. The tort and contribution claims also survived, the judge considering it premature to rule on pure economic loss against a bare claim form.

Amtico further relied on a course of dealing under which its standard terms were appended to invoices. Loughton had not answered that evidence, but the invoices exhibited were later reprints marked as duplicates, with discrepancies in banking details and a purchase order reference. Their terms also differed from those first put forward, and referred to two further agreements not before the court. Counsel's assurance on instructions that these were irrelevant could not fill the gap.

The outcome did not turn on incorporation alone. Even assuming the terms applied, Amtico had served no evidence that its exclusion and limitation clauses were reasonable under the Unfair Contract Terms Act 1977, where section 11(5) places the burden on the party relying on them. Citing Last Bus Ltd v Dawsongroup Bus and Coach Ltd [2023] EWCA Civ 1297, the judge noted that such fact-sensitive questions ordinarily require a trial. The construction of clauses 10(a)(i), 10(a)(ii) and 10(d) was left open.

Strike out under CPR 3.4(2)(a) failed because the limitation and contractual points were defences resting on facts outside the claim form. Applying Denton v TH White Ltd, the judge found the late particulars a serious and significant breach with no good reason offered. Even so, the stay had mitigated its practical effect, and he distinguished North Midland Construction plc v Geo Networks Ltd because no trial date was at risk. Strike out could have barred claims that were in time when issued, which he considered disproportionate.

A further six-month stay was not justified, but the judge saw advantage in early determination of issues such as actual delivery dates and the enforceability of clauses 10(a)(i) and (ii) under the 1977 Act, which could prove practically dispositive. He will hear the parties on a short, tightly defined stay for Protocol correspondence and on directions, including targeted disclosure and possible preliminary issues.

Peter Brogden appeared for Loughton, instructed by Edwards Duthie Shamash. Mek Mesfin appeared for Amtico, instructed by Osborne Clarke LLP.