Statements of principle by Akenhead as to whether a dispute or difference capable of being referred to adjudication had arisen and as to a responding party challenging the adjudicator's jurisdiction in court enforcement proceedings by reserving its position in the adjudication

Akenhead J

Technology and Construction Court
17 November 2009

Akenhead J set out matters of principle derived by established by the authorities in relation to whether a dispute or difference had arisen for the purposes of a reference to adjudication. He noted that Parliament had provided for a speedy means of resolving construction contract disputes by way of adjudication and the temporary resolution of disputes in the short term had been preferred to provide certainty to contracting parties for better or for worse.
There had to be a claim, an assertion or adoption of a position by one party which was expressly or by implication rejected or at least not accepted by the other. The claim, assertion, rejection or non-acceptance did not have to be in writing, in any form or detailed. The claim, assertion or adoption of the position had to be communicated to the other party. It could not therefore be enough to create a dispute that one party simply believed in its own mind (without any communication to the other) that if it was to make a claim, it would in all probability be rejected by the other party. Whilst it was necessary to look at the history and the context in which the dispute was said to have arisen, the law adopted an inclusive interpretation as to what amounted to a dispute. The court should not adopt an over legalistic analysis of the dispute and instead would determine in broad terms what was the disputed claim, assertion or position. In particular Akenhead J considered the position where a basic claim, assertion or position had been put forward by one party and the other disputed it. The dispute referred to adjudication would or might include claims for relief which were consequential on and incidental to it and enabled the dispute effectively to be resolved. Even if the claim did not as such seek a declaration or discretionary interest or costs, such relief might be so connected with and ancillary to the referred dispute as properly to be considered as part of the claim. However, there had to be limits to this which could be determined by analysing what was the essential dispute referred.