The consequence of lack of crystallization of a dispute on an adjudication decision in common law is clear, as it was held in Beck Interiors and recently in Dickie & Moore. Some thoughts are shared as to comparing it with its consequence under civil law.
Beck Interiors Ltd. v. Flooring Contractors
In Beck Interiors the Technology and Construction Court has held that “the five-day period between Beck’s e-mail claim and the notice of adjudication was effectively one working day which was insufficient to permit the inference that the KFCL intended to dispute the claim”.
Beck’s notice of intention to refer the dispute to adjudication was in fact 23:00 hours and 58 minutes only after it had made its e-mail claim.
Dickie & Moore v. McLeish & Others
In Dickie & Moore, the Outer House of the Court of Session, after advising that it would approach this matter “with a commercial and not with an over-legalistic eye”, has held that the claims which had been made in the Notice were “of a different nature and order of magnitude from the previous disagreement”.
The dispute had not then crystallized as to such claims.
The result of both these disputes was that the adjudicator had no jurisdiction.
From a civil law point of view
Looking at crystallization from a civil law point of view, it seems that the English approach is due to the very special nature of adjudication proceedings.
In ordinary court proceedings, at least in many civil law jurisdictions, the Court would tend to look at whether the defendant had been given during the proceedings the opportunity to resist the claim, rather than as to whether the proceedings had been instituted before the opposite party had had an adequate opportunity to challenge the claim.
The lack of crystallization might be taken into account even in civil law jurisdictions as to the allocation of costs of the proceedings.