Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 111
2023 (August Programme) which accounted
for project delays but maintained the projected
completion date set by the July Programme.
In allowing Kingsmead’s Part 8 claim, the Court
ruled that the adjudicator fell into clear error
by not considering the legal e昀昀ect of the July
programme. There was no dispute as to whether the
July programme had been provided to Laycock, and
given that the July programme was referenced in the
subcontract, this material issue satis昀椀ed all the TCC
gateway requirements.
During the course of the project, Laylock was
delayed in carrying out their Works and Kingsmead
leveraged liquidated damages (LDs) on account of
the alleged delays.
Laycock issued an adjudication on the basis that
there was not an agreed completion date within the
sub-contract and, in consequence, Kingsmead was
not entitled to leverage LDs.
UU
In UU a dispute arose from a major infrastructure
project under an NEC3 contract. The contract was
heavily amended to include a bespoke (milestonebased) payment regime with payments administered
through the digital platform, CEMAR.
The adjudicator sided with Laylock, arguing that
the August Programme was not validly incorporated
and therefore there was no agreed contractual
completion date and instead set a reasonable
completion period.
UU issued a payment notice (PA-70) for a negative
sum requiring Farrans to pay UU circa £3.27 million.
Farrans disputed the PA-70 on two grounds:
Kingsmead was ordered to pay Laylock £27,895.26
plus VAT in addition to the adjudicator’s fees.
Kingsmead disputed the decision.
In the context of the dispute, Laycock applied to
the courts to enforce the decision. In response,
Kingsmead issued a Part 8 claim. Speci昀椀cally,
Kingsmead’s position was:
1.
via the incorporation of the July programme
there was a completion date or period
3.
the adjudicator had made a clear error of law by
way of their failure to consider the programme
presented in the Adjudication was a validly
incorporated contractual document and in
concluding that there was no completion date.
•
that issue requires no oral evidence, or any
other elaboration beyond that which is capable
of being provided during the interlocutory
hearing for enforcement and
•
The headline issue in the case was whether Farrans
had suitable grounds to bring a Part 8 claim by
application of Part 8 requirements/the TCC Guide.
Farrans argued that the primary Part 8 issue was
simple: was PA-70 a valid payment notice?
Farrans argued that for a notice must be free from
ambiguity and clear so that the parties know what
to do about it and when. In addition, the dates
to which a notice relates must also be clear and
unambiguous. If an incorrect date is set out, a notice
would be invalid. Farrans asserted that this test was
not satis昀椀ed. PA-70 contained an incorrect date and
was not free from ambiguity
UU disputed Farrans analysis. UU argued that
matter was not suitable for determination in Part 8 as
the issues were complex. In particular, UU asserted
that there was a substantial factual issue/dispute
as to whether the contractual notices contained
on CEMAR were incorrect and misleading. The
determination of this issue relied on the application
of the ’reasonable recipient’ test ie the understanding
of the actual recipient of the contractual notice
the issue is one which, on a summary judgment
application, it would be unconscionable for the
court to ignore; and further that there should in
all cases be proper proceedings for declaratory
relief.
EXPERT WITNESS JOURNAL
PA-70 did not amount to a demand for payment
from the contractor to the employer.
Part 8 Proceedings
The Judge detailed the gateway requirements
to a successful Part 8 claim, which includes the
adjudicator having made a clear error, and applied
the three criteria laid out in part 9.4.5 of the TCC
Guide:
there is a short and self-contained issue which
arose in the adjudication and which the
defendant continues to contest
2.
Farrans resisted payment and brought a Part 8 claim
challenging the validity of the notice and whether a
pay less notice was required.
The decision
•
the CEMAR showed an incorrect due date and
The dispute was referred to adjudication. In 昀椀nding
in favour of UU, the adjudicator ordered Farrans to
pay the negative valuation sum of £3.27 million.
the July Programme was the contractual
programme
2.
1.
109
AUGUST 2026
