Costain Limited, as Contractor employed the Defendant, Wescol Steel Limited, as sub-contractor for the carrying out of steelwork. There was a dispute as to the date when the work was completed, although it was around July 2002. Wescol went into administrative receivership in September 2002.

By a letter dated 18th October 2002 Wescol's solicitors, acting for the Receiver, claimed that a dispute had arisen in respect of Wescol's entitlement to an extension of time and the amount due to them in respect of the final account. The letter stated that unless payment was received in respect of the final account by 11th November 2002 then the matter would be referred to adjudication. A reply letter of 7th November 2002 said that a dispute could not yet exist in respect of the final account as the final account was not yet due for determination. This was because the time for payment in respect of the final account had not yet been reached because the defects liability period under the main contract had yet to expire.

The Notice of Intention to Refer to Adjudication stated that a dispute had arisen in respect of the value of the final account, and sought a declaration as to its value, a payment of the sum of money and a declaration of an entitlement as to an extension of time. In respect of the service of any documents, the parties had agreed that the documents were not sent by the method prescribed in the contract. The Defendant argued that the effect of the particular clause was not binding because of the subsequent amendments to the contract, or in any event did not invalidate the Adjudicator's decision.

HHJ Havery QC referred to the "nuances of meaning" in respect of the terms dispute. He summarised these in the following manner:-

"First, as including any claim which the other party refuses to admit or did not pay… . Second a dispute exists where there is a claim which the Defendant refuses to admit and refuses to pay… . Third, there is a dispute once money is claimed unless and until the Defendant admits that the sum is due and payable… . Fourth, there is a dispute where a party has refused to pay a sum which is claimed or has denied that it is owing".

He held that as Costain had denied that money was due and did not accept that the final account was correct then the dispute arose on 13th December 2002. The various matters referred to in the Notice of Intention to Refer constituted one dispute. Finally, the time limit was qualified by an amendment and so did not fall foul of the Act. In any event, the failure to comply did not render the adjudication invalid. Accordingly, there was a valid dispute that was referred to adjudication, and the decision would be upheld.