Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 22
Kingsmead responded by bringing a Part 8 claim for
declaratory relief, seeking to resist enforcement of
the adjudicator’s decision.
documents. In this case, the express contractual
language made the position clear.
What Does “Unconscionable” Mean in
This Context?
What was the error made by
the Adjudicator?
Laycock argued that the unconscionability limb of
the test could not be engaged because Kingsmead
had not raised the July programme issue during
the adjudication. The court rejected this argument,
昀椀nding that Kingsmead had argued that, “The
attached programme” would be su昀케cient to give
rise to a completion date albeit that, during the
adjudication, they were relying upon the August
programme as the “attached programme”.
The central issue was whether the subcontract
included an agreed completion date. The
adjudicator found that an August 2023 programme
containing an accelerated completion date had not
been incorporated into the subcontract. However,
he failed to consider an earlier programme from
July 2023, emailed to Laycock with a copy of the
subcontract for signing. Clause 6.8 of the subcontract
contained the following wording “Commencement
and completion:- see attached programme” though
the programme was not physically attached to the
signed subcontract.
Given that a proper legal analysis of the July
programme had a signi昀椀cant prospect of producing
a di昀昀erent outcome, the court found it would be
unconscionable to ignore the adjudicator’s error.
Kingsmead was therefore granted the declaration
sought.
Because the adjudicator concluded that no
contractual completion date existed, he determined
that no extension of time mechanism was engaged.
He then substituted a “reasonable period” for
completion.
What Are the Key Takeaways?
•
Successful Part 8 challenges are rare but possible.
Resisting enforcement of an adjudicator’s
decision is uncommon, but this case con昀椀rms
genuine scope for intervention where a material
error is made by the adjudicator.
•
Construction programmes can be incorporated
into contracts. Despite general convention
treating programmes as non-contractual
documents, express contractual language (such
as Clause 6.8 in this case) can incorporate them.
However, parties should bear in mind that there
can be pitfalls in designating the programme a
contract document such as:
When Will the TCC Allow a Part 8
Challenge to Block Enforcement of
an Adjudicator’s Decision?
The TCC applied the restrictive four-stage gateway
test set out in Section 9.4.5 of the TCC Guide. This
test permits the court to intervene where:
•
The adjudicator has made a clear
jurisdictional error.
•
The error relates to a short, self-contained
legal issue.
•
The issue can be resolved without the need for
oral evidence.
•
It would be unconscionable for the court to
ignore the error.
The court was satis昀椀ed that all four stages were
met. The adjudicator’s failure to consider the
July 2023 programme was a clear error which was
unconscionable for the court to ignore.
How Did the Court Interpret the Contract?
Applying the objective test for contractual
interpretation, the court held that a reasonable
observer would understand Clause 6.8—which stated
“Commencement and completion: – see attached
programme”—as incorporating the July 2023
programme into the subcontract. Laycock’s witness
evidence con昀椀rmed receipt of that programme.
•
The court rejected Laycock’s reliance on the
general proposition from Chitty on Contracts that
programmes are not usually treated as contract
EXPERT WITNESS JOURNAL
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ɿ
Reduced 昀氀exibility for the contractor:
Incorporating a programme into a contract
obliges a contractor to carry out the works
strictly in accordance with the programme,
achieving all key dates shown and not just
the 昀椀nal date for completion, bedding in
more risk of being in breach of contract.
ɿ
Employer reliance on its professional
team: it would impose extra obligations
on the employer such as binding dates for
providing information and approvals to the
contractor. This would require additional
obligations on the professional team and
may require speci昀椀c drafting in their
appointments to include obligations to
comply with the employer’s programming
obligations.
Unconscionability focuses on consequences,
not procedure. The test for court intervention
centres on whether ignoring the error would
produce an unjust result.
AUGUST 2026
