Common sense applied to the definition of a dispute

Abstract

Purpose

The paper seeks to examine how the existence of a “dispute” for the purpose of construction adjudication has been determined and to consider whether direct application of the often cited Halki Shipping Corporation v. Sopex Oils Ltd could lead to a breach of natural justice.

Design/methodology/approach

The paper analyses construction adjudication enforcement judgments since 2000 and considers the different approaches taken by the various judges. Cases are considered chronologically and are grouped into distinct phases to demonstrate the development of the law in this area.

Findings

There is no definitive meaning of “dispute” and the existence of a dispute in construction adjudication is a subjective issue requiring a practical common‐sense approach relying on the facts, the law and policy considerations. If a strict application of Halki is used in such cases, a breach of natural justice may arise whereas a common‐sense application of the Halki test, taking cognisance of time‐related issues and the original intent of construction adjudication, offers scope to establish a universal policy.

Practical implications

The paper provides a historical summary which should encourage parties to adjudication to recognise that many of the court challenges which arise could be prevented, or could be more easily resolved if a reasonable, common sense approach was adopted.

Originality/value

The paper provides a comprehensive review of construction adjudication case law relating to the existence of a “dispute” and indicates how the law has developed in this area.

Citation

Reid, A. and Ellis, R.C.T. (2007), "Common sense applied to the definition of a dispute", Structural Survey, Vol. 25 No. 3/4, pp. 239-252. https://doi.org/10.1108/02630800710772827