Adjudication—is there a ‘dispute’?

The following Construction practice note provides comprehensive and up to date legal information covering:

  • Adjudication—is there a ‘dispute’?
  • Crystallised dispute
  • Has a claim been made?
  • Has the claim been rejected or otherwise disputed?
  • Single v multiple disputes
  • Examples of multiple issues but only one dispute
  • Examples of multiple disputes
  • Dispute has already been determined
  • Payment disputes—successive adjudications dealing with payment applications
  • Has the dispute been settled?
  • More...

Adjudication—is there a ‘dispute’?

This Practice Note considers the requirements for a dispute to be capable of referral to adjudication. In summary, a dispute must:

  1. have crystallised—such that the responding party has had an opportunity to consider the claim and reject it prior to a Notice of Adjudication being served

  2. be a single dispute (although it may involve multiple issues)

  3. not have already been determined (in earlier adjudication, court or arbitration proceedings) or settled

For guidance on the entitlement to adjudicate generally, see Practice Note: The right to adjudicate.

Crystallised dispute

If no dispute has crystallised, there is nothing that can be referred to the adjudicator under HGCRA 1996, s 108(1), and the adjudicator will therefore lack jurisdiction. The court set out in Fastrack v Morrison what, at a bare minimum, was necessary for a dispute to have crystallised:

'A dispute can only arise once the subject-matter of the claim, issue or other matter has been brought to the attention of the opposing party and that party has had an opportunity of considering and admitting, modifying or rejecting the claim or assertion.'

Accordingly, the mere fact that one party has notified the other of a claim does not immediately give rise to a dispute. The dispute does not arise until it emerges that the claim is not admitted (which, as discussed below, can be by express words or by silence):

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