Crystallisation – again

Dickie and Moore v McLeish (2019) BLM, Court of Session out of House

Facts

Mr McLeish and his fellow trustees contracted with Dickie and Moore to build a large residential dwelling near Armadale in Scotland.  The parties failed to agree upon the final account value and the contractor sought further payment through adjudication.  The contractor sought a further payment of £324,000 and the McLeish Trustees defended on the basis that no dispute had crystallised.

The Court of Session Held:

The claims which the builder brought in the adjudication for an extension of time and for loss and expense were so much greater than and different from those which had been advanced in the previous negotiations, that they were in reality new submissions.  Consequently, the dispute as referred to the Adjudicator was not the dispute which the parties had been negotiating on, and they could not be said to be “in dispute” upon what was effectively a new case.  The enforcement of the adjudication was refused.

Comment

1. Generally, the Courts are very wary of challenges to adjudication validity based upon the crystallisation argument. Usually if A asks B for money and B simply fails to pay this is as good as an express rejection.
2. Cases such as this are very unusual, and in general where the Defendant persists in not paying despite submission of a formal claim, an adjudicator can assume that he/she has jurisdiction to proceed without fear of challenge.

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