Ever since parties to a construction contract were given a statutory right to a decision on a dispute via adjudication, defending parties have sought to delay the commencement of an adjudication and then to further delay or avoid enforcement of a decision with the plea of ‘no dispute’. The Act which gives parties the right to adjudicate requires, in short, for there to be a dispute between the parties before the Notice of Adjudication is issued.
The defending party has often sought to procrastinate and delay the commencement of adjudication by making repeated requests for further information before valuing a contractor's or subcontractor’s account. If that is not successful in avoiding the Notice of Adjudication the same argument will be made early on in response to any referral and then repeated as a line of argument as to why an adjudicator’s decision ought not to be enforced.
In light of the policy that an adjudicator’s decision should be enforced, this line of defence has rarely been successful in practice but defendants still often take this line of argument. However, the previous practice of lengthy submissions as to why there is no dispute is dying away and the making of a no dispute argument has often become one of practice rather than substance.
In light of the opinions of Mr Justice Coulson in St Austell Printing Company Limited -v- Dawnus Construction Holdings Limited  and his recent unreported decision of AMD Environmental Limited -v- Cumberland Construction Co Limited (unreported decision of 15 February 2016) perhaps even the practice of stating the no dispute defence should now die away. Notably, in the case of St Austell, the barrister representing the defendant did not actually make oral submissions before Lord Coulson in support of the no dispute argument. Lord Coulson describes that barrister exhibiting ‘a typical acumen’. In other words, the no dispute argument was so without legal credibility that the barrister did not actually argue it before the court.
Mr Justice Coulson made it clear in St Austell that ‘the crystallisation argument is almost never successful’. Mr Justice Coulson observed that this is only upheld in the most extreme of cases. In both St Austell and AMD the ‘no dispute’ defence was a supplementary line of defence to enforcement. In both cases the paying party had sought to procrastinate prior to the commencement of adjudication. In neither case were requests for information nor an indication that further information and ascertainment would be required successful tools for avoiding the claimant’s right to adjudicate and enforce. In AMD it was held by the court that it was wrong in principle and misconceived to suggest that a dispute had not arisen until every last part of every element of a claim had been provided. Importantly, where a contractor or subcontractor claimed for a payment, it was for the paying party to evaluate the claim properly. A dispute as to particularisation can proceed in tandem with that process. So, as a paying party, you may think you are entitled to further time and further information but you may also find that there is a dispute that will entitle the claimant to adjudicate in the meantime. Whether the absence of that further information during the course of the adjudication will stop the claimant being successful in proving its claim will be a matter for the adjudicator. Notably in both St Austell and AMD the adjudicators did make findings in favour of the claimant.
Conclusion – paying parties should be aware that requests for further information and arguing that no dispute has yet arisen may not hold off claimants from commencing adjudication. Except where there is a well founded basis to argue that there was no dispute at the time of commencement of the adjudication, the avoidance of the enforcement of an adjudicator’s decision on this line of defence is becoming less likely.