When can an Adjudicator’s Decision be challenged? A case analysis

In the world of adjudication, the process is fast paced and intense. In such circumstances, understandably, there are occasions in which the Adjudicator gets the law wrong. If that happens, can you challenge the Decision?

The answer is yes, and the process whereby an adjudicator’s decision may be challenged is set out in Part 8 of the Civil Procedure Rules Part 8 (a Part 8 Claim).

In this article, we consider two examples of Part 8 Claims:

1. Kingsmead v Laycock [2025] EWHC 2617 (TCC) (Kingsmead)

2. United Utilities Water Ltd v Northstone (NI) Ltd (t/a Farrans Construction) [2026] EWHC (UU)

one of which was successful and one of which was unsuccessful.

Part 8 scope

Before focusing on the detail and outcome in the two cases, UU and Kingsmead, it is helpful to set out the generally accepted scope of a Part 8 Claim.

A Part 8 Claim is a pathway used to seek the court’s decision on a question of law, interpretation or principle. It operates to resolve specific points of dispute; and, importantly for the purposes of this article, has become a common tool to oppose an application to enforce an adjudicator’s decision.

The basis on which a Part 8 Claim can be referred are limited and may not always be appropriate depending on the facts at hand. Namely, there must not be any material disputes surrounding the facts - the court will not decide what actually happened, rather it will only consider what the law requires.

Kingsmead

In Kingsmead, the referral to a Part 8 claim followed a Part 7 enforcement application referred by Laylock. Kingsmead made the Part 8 Claim on the basis that they considered the Adjudicator had made a legal error in arriving at his decision – a matter of law which was suitable for Part 8 determination.

Summary of facts

Kingsmead was engaged as the main contractor on a residential construction project at Seacombe, Wirral. Laylock was engaged by Kingsmead under a sub-contract to carry out plumbing and electrical works associated with the project (Works).

In July 2023, Kingsmead issued the sub-contract for execution along with the attached programme setting out provisional start dates but with a fixed duration of 105 days (July Programme). Kingsmead later issued an accelerated programme in August 2023 (August Programme) which accounted for project delays but maintained the projected completion date set by the July Programme.

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.

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.

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. Specifically, Kingsmead’s position was:

1. the July Programme was the contractual programme

2. 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.

The decision

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:

1. there is a short and self-contained issue which arose in the adjudication and which the defendant continues to contest

2. 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

3. 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.

In allowing Kingsmead’s Part 8 claim, the Court ruled that the adjudicator fell into clear error by not considering the legal effect 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 satisfied all the TCC gateway requirements.

UU

In UU a dispute arose from a major infrastructure project under an NEC3 contract. The contract was heavily amended to include a bespoke (milestone-based) payment regime with payments administered through the digital platform, CEMAR.

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:

1. the CEMAR showed an incorrect due date and

2. PA-70 did not amount to a demand for payment from the contractor to the employer.

The dispute was referred to adjudication. In finding in favour of UU, the adjudicator ordered Farrans to pay the negative valuation sum of £3.27 million.

Farrans resisted payment and brought a Part 8 claim challenging the validity of the notice and whether a pay less notice was required.

Part 8 Proceedings

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 satisfied. 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 based on their actual contemporaneous knowledge. The assessment of the ’reasonable recipient’ test required oral evidence and elaboration that was not capable of being determined during the limited time available for a Part 8 hearing.

The decision

In giving Judgment in favour of UU, HHJ Kelly held that:

1. the Part 8 claim was inappropriate; Farrans arguments were not short points of contractual construction and required factual investigation and an understanding of how CEMAR operated in practice.

2. the adjudicator acted within jurisdiction and applied the ‘pay now argue later principle’.

3. the validity of the payment notice was contingent on the ‘reasonable recipient’ test where contractual background, commercial context and how parties operate the regime in practice were requisites to be assessed.

Based on the above rulings, the adjudicator’s award was enforced, and the notified sum was payable.

Commentary on Part 8 claims

In both the UU case and the Kingsmead case, the Court applied the criteria of 9.4.5 but the outcomes were very different. However, the decisions perhaps serve to challenge the perception of what type of issues are suitable for Part 8 determination. In UU, the matter concerned the validity of a payment notice. This has been a productive area for those seeking to resist enforcement. However, on the facts in UU, there were factual issues that resulted in HHJ Kelly’s Judgment that the matter was not suitable or Part 8. In contrast, the issue in Kingsmead was unusual in the context of historic Part 8 claims. Nevertheless, the Court concluded that the issue satisfied the test in the TCC Guide leading to Kingsmead’s success on its Part 8 Claim.

For further insight onto the rise of Part 8 claims in Construction, read our Challenging Adjudication: Part 8 Claims Rise article. If you’d like to learn more about how we can support your construction business find out more about our Construction and Engineering expertise, or contact us today.

This article was co-authored by Paralegals, Maya Pierre-Louis and Gabriel Foster.