Two programme documents of a main contractor were included in documents attached to an executed subcontract for steelwork and cladding. A Scottish court decided that they were ‘Sub-Contract Documents’ which, with other documents, ‘regulated’ the parties’ rights and duties. But did they provide a contractually binding programme for the subcontract?

The court’s view was that it would be unusual for contracting parties to tie themselves into an arrangement where any departure from the programme would be a breach of contract by one or both and the court decided they had not done so. One of the two programme documents, IRS4, was not a subcontract programme and the two documents had inconsistent dates. Although the subcontractor’s own programme was not a ‘Sub-Contract Document’, warranties in respect of it gave relevant rights to the main contractor and the sequence of construction was clear to all concerned, without the undesirable and uncommercial potential consequences of making every programme detail a contractual requirement. A reasonable person with the background knowledge available to the parties at the time of entering into the subcontract would not conclude that the parties intended the two programme documents to be contractually binding, but would rather conclude that IRS4 was included in the ‘Sub Contract Documents’ simply to affirm the level by level, sector by sector approach to be adopted on the project by, among others, the subcontractor.

Martifer UK Ltd v Lend Lease Construction (EME A) Ltd [2015] CSOH 81