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Let me tell you about the dispute between Jackson Civil Engineering and subcontractor VGC Construction. It was over 65km of duct and cabling work on the M3. The contract period was 26 weeks but it ran well over. The design of certain parts of the works was incomplete. So, by the time of the 14th interim accounts, the amount claimed by VGC swamped the original subcontract sum by about 拢1m. One item in that was a 鈥渙ne-liner鈥� claim from VGC boldly asking for 拢300,000 for 鈥渄elay and disruption鈥�. You can guess what the one-liner reply from Jackson was.

At once you have the makings of a dispute. In truth, it nearly always happens that the main contractor becomes nervous about paying its subcontractors one penny over the order value. And who can blame a main contractor for not paying a bare, unsupported interim claim for 10 bob, never mind a whopping 拢300,000. Mind you, many a standard form contract actually obliges the main contractor to make a fair fist of calculating delay and disruption sums due to its subcontractors irrespective of what the subby says 鈥� so watch out!

The dialogue between VGC and Jackson took its usual course. Jackson asked VGC to substantiate not only the delay claim but the variations claim of numerous heads, as well as the re-measurement of the works done. Meanwhile, that 拢1m or so divided the parties. They wrestled with the measured account and variations, and VGC scrabbled around for better particulars about extension of time, prolongation costs and disruptive working losses. It鈥檚 not clear why VGC then ran out of patience, but it did, and in May called for an adjudicator. VGC wanted its 拢300k. 鈥淥h, come on, you withdrew the 拢300k delay claim while you went away to gather your proof,鈥� said Jackson. 鈥淣o, no,鈥� said VGC. 鈥淲e said we would work on it but didn鈥檛 withdraw it.鈥� 鈥淲ell,鈥� said Jackson, 鈥渋t鈥檚 hardly a dispute, it鈥檚 a one-liner.鈥� And so the adjudication went on. VGC was claiming a gross amount of 拢4.3m. Jackson, which had previously paid 拢3.6m, denied any balance was due and re-claimed 拢650k of contra account for good measure.

The award of the adjudicator was one of those 鈥渘o reasons given鈥� awards. I confess to not liking that approach. Losers really deserve to know why they lost. Anyway, the adjudicator ordered Jackson to stump up 拢746k. Jackson balked. It was that 拢300k item that troubled it. Within weeks it was in front of High Court judge Mr Justice Akenhead.

The award of the adjudicator was one of those 鈥榥o reasons given鈥� awards. I confess to not liking that approach. Losers really deserve to know why they lost

Jackson鈥檚 first point was that the claim had been 鈥渨ithdrawn鈥� from the interim account long before the adjudication. The judge rejected that on the evidence. Point two said the 拢300k claim was of such a 鈥渘ebulous nature鈥� it had not matured into a dispute. You can鈥檛 come to adjudication unless the claim is actually, in law, a dispute. 鈥淚t is a dispute,鈥� said the judge, and here鈥檚 why. On receipt of VGC鈥檚 interim account, Jackson rejected several items, including the 拢300k delay claim for want of justification. Bingo! Jackson鈥檚 rejection created the dispute.

The want of evidence and carefully explained rights to loss and expense by VGC is a risky way to come to an adjudication. But dispute it certainly is. So there is no room there to oust the 拢300k claim as a 鈥渘o-dispute鈥� issue.

Point three is important. Unsurprisingly, VGC tried during the adjudication to sharpen its claim with 鈥渘ew鈥� materials. This business of new materials in the middle of a lightning speed adjudication is a real concern for adjudicators. Jackson told the adjudicator he had 鈥渘o jurisdiction鈥� to take the new stuff on board. New it was, but was it fully within the scope of the dispute? The judge appears to have focused on whether there was sufficient time for Jackson to address the new material. And since Jackson did address it, there can be no complaint as to the fairness of letting it in. The hint, however, is that Jackson addressed it on the hoof while saying 鈥渋t reserved its position鈥� as to whether it was right to let it in.

The judge was cautious about a party calling for a decision while reserving its position as to whether the adjudicator can decide at all. It鈥檚 called blowing hot and cold. Not on. Jackson was told to pay up.