Disputing the existence of a dispute as a strategy for avoiding construction adjudication

Abstract

Purpose

The purpose of this article is to provide a critical analysis of court decisions on what amounts to a dispute that may be referred to adjudication under the Housing Grants, Construction and Regeneration Act 1996.

Design/methodologyapproach

Legal research methods were followed. The first stage entailed a review of relevant literature. Reports of court decisions were then studied to identify cases involving litigation on what amounts to a dispute. A total of 26 cases, going back to 1965, were identified. Each case was then analysed to extract the applicable legal principles, particular attention being paid to clarity and consistency with not only other cases but also the policy underlying the relevant legislation.

Findings

Until only recently, first instance judges adopted the one or the other of two opposing approaches to the question, thereby causing considerable litigation. The Court of Appeal has twice approved a flexible approach based on the principle that a dispute arises only after a party has been given reasonable opportunity to consider the other party's claim and has rejected it expressly or by implication.

Originality/value

The novelty and global spread of adjudication lends the article considerable originality and value. Its main value is in the guidance it provides as to the principles that the court is likely to apply in answering the question whether a dispute capable of being referred to arbitration or adjudication exists. It is hoped that knowledge of these principles will reduce litigation on this issue.

Citation

Ndekugri, I. and Russell, V. (2006), "Disputing the existence of a dispute as a strategy for avoiding construction adjudication", Engineering, Construction and Architectural Management, Vol. 13 No. 4, pp. 380-395. https://doi.org/10.1108/09699980610680180