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This has raised two questions: when does a dispute arise and when can a party introduce fresh evidence?

The question of 'when is there a dispute?' was first raised in the case of Fastrack versus Morrison (4 January 2000). The defendants, Morrison, argued that the claim put forward by Fastrack had not crystallised into a dispute between the parties at the date of the notice of adjudication. Morrison maintained that the only dispute in existence at the time of the notice was Fastrack's interim payment application (which Morrison had responded to with a notice of set-off). The sum claimed by Fastrack in its notice of adjudication was greater than that claimed in the payment application and Morrison contended that it amounted to a new claim which it had not had an opportunity to consider.

Getting the facts right
His Honour Judge Thornton QC noted that it is a question of fact as to what is in dispute between the parties at any given point in time. He relied on two arbitration cases in the Court of Appeal, Halki Shipping Corporation versus Sopex Oils Ltd and Monmouthshire County Council versus Costelloe & Kemple Ltd. These shed light upon two areas: a claim and its submission do not, by themselves, constitute a dispute, and a dispute only arises when a claim has been notified to the other party and rejected.

Although Fastrack's notice referred a "complex dispute" concerning a number of questions, Judge Thornton found that the issues had been in dispute between the parties by the date of the notice of adjudication. The difference in the sum claimed resulted from finalisation by Fastrack of the remeasurement process, a correction of errors and a particularisation of its claim for damages.

In June 2001, the question of whether a dispute existed came before His Honour Judge Humphrey Lloyd QC in the case of Sindall Ltd versus Solland and Ors. He stated, in what has become referred to as the test in Sindall: "For there to be a dispute for the purposes of exercising the statutory right to adjudication it must be clear that a point has emerged from the process of discussion or negotiation has ended and that there is something which needs to be decided."

In Edmund Nuttall Ltd versus RG Carter Ltd (21 March 2002) the claimants had issued a report with their referral notice which had not previously been seen by the defendants. This raised the question of whether the claimants could introduce fresh evidence in this fashion. The claim was for an extension of time. The report adopted a different methodology and justification for the extension of time than that put forward in an earlier claim document. The sums claimed for loss and expense were also different.

Each side must have the opportunity to consider the stance taken by the other and formulate a response. Otherwise there is a risk of premature adjudication.

Premature adjudication
His Honour Judge Seymour QC found that in considering the report, the adjudicator had acted without jurisdiction. A party could not 'ambush' the other with new facts in this way. Each side must have had the opportunity to consider the stance taken by the other and to formulate reasoned arguments in response. Otherwise, he said, there was a real risk of "premature… adjudications".

In the case of Beck Peppiatt Ltd versus Norwest Holst Construction Ltd (20 March 2003) Mr Justice Forbes endorsed the test in Sindall as did Her Honour Judge Frances Kirkham in Orange EBS Ltd versus ABB Ltd (22 May 2003). She had to determine whether a dispute about a final account (notified on 2 December 2002) had crystallised by the time Orange issued its notice to adjudicate on 6 January 2003. On 12 December 2002 ABB's solicitors had specifically stated that its client needed time (until 20 January 2003) to consider the final account. She also held that the Halki decision was binding on her to the effect that "there is a dispute once money is claimed unless and until the defence admit that the sum is due and payable".

She concluded that by 6 January sufficient time had elapsed for a valuation by ABB and then for any discussion or negotiation of Orange's claim even though the six-week period included the Christmas holidays.

In Dean & Dyball Construction Ltd versus Kenneth Grubb Associates Ltd, 28 October 2003, the party trying to resist enforcement of an adjudicator's award tried to argue that there was no dispute at the time of the notice of adjudication because the damages claimed by the other party had increased twice since its initial claim letter. His Honour Judge Seymour QC rejected the argument on the basis that if liability is in dispute and the party alleged to be liable has not accepted responsibility for paying any sum, there is a dispute as to liability and a dispute as to the obligation of that party to make payment.