Crystallisation of disputes — is silence really golden?

It might sound obvious, but if you are a party to a construction dispute and you are considering commencing an adjudication, one of the key considerations is to ensure that a dispute does actually exist. We lawyers refer to this as a dispute having ‘crystallised’. If a dispute does not exist (i.e. it has not ‘crystallised’), the adjudicator may not have jurisdiction to make a decision.

So what does this mean in practical terms? Well, it means that you need to plan how you will create the dispute. Part of this process will be to ensure that all of the issues involved have been put to your opponent.

Over the years, the courts have dealt with numerous cases where the issue was whether or not the dispute between the parties had crystallised. In a recent case, this issue reared its head once again…

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