Irish High Court refuses leave to enforce an Adjudicator’s decision

Byrne Wallace Shields LLP recently acted for Tenderbids Limited (“Tenderbids”) in their application to the High Court to enforce the decision of an Adjudicator made under the Construction Contracts Act 2013 (the “CCA 2013”).¹ On 13 March 2025, the High Court promulgated its judgment wherein it refused the application on the basis of non-compliance with the parties’ contractual obligation to deliver a notice of intention to refer a Payment Dispute an Adjudication (the “Notice of Intention”) by the correct means. This judgement represents, to our knowledge, the first instance that the High Court has refused to enforce an Adjudicator’s decision since the commencement of the statutory adjudication regime on 25 July 2016. 

Background 

Tenderbids was engaged by the Respondent, Electrical Waste Management Limited (“EWM”), as the main contractor to carry out the construction of a waste metal facility. During the course of the project, a dispute arose relating to the non-payment of a payment claim notice issued by Tenderbids. EWM subsequently failed to respond to the payment claim within the statutory period of 21 days from the payment claim date and Tenderbids accordingly referred the dispute to adjudication pursuant to Section 6(1) of the CCA 2013. 

The Notice of Intention was emailed to the directors of EWM and to EWM’s designated project agent on 21 June 2024. The Notice of Intention was emailed on the basis that all communications between the parties had been conducted through email. After transmission of the covering email, Tenderbid’s adjudication consultant received email delivery receipts and an automated confirmation stating that the email enclosing the Notice of Intention had been opened by a director of EWM.

On foot of correspondence between Tenderbids and EWM’s agent which expressed that Tenderbids would be proceeding with the adjudication, Tenderbids applied to the Construction Contract Adjudication Service (the “CCAS”) for the appointment of an Adjudicator. The CCAS acknowledged this application by post and email to Tenderbids and EWM. The appointment of the Adjudicator was also confirmed to both parties by way of post and email. 

Tenderbids then delivered the Applicant’s Referral in the adjudication which EWM did not respond to, however Tenderbids’ adjudication consultant did receive a phone call from EWM’s legal representative, who enquired whether the Applicant would be willing to extend the adjudication process. In the same call EWM’s legal representative expressed an intention to write to the Adjudicator on the Respondent’s behalf in order to offer a Response. No Response was delivered in the Adjudication.

In the context of EWM’s non-responsiveness, the Adjudicator, writing to both parties, cited paragraph 32 of the Code of Practice on the Conduct of Adjudications, including his powers to draw inferences from the failure of a party to comply with directions and his authority to make a decision based upon the material properly provided. 

The Adjudicator ultimately determined that the Notice of Intention was validly served through email and, in the absence of any Response or jurisdictional challenge from EWM, decided the payment dispute in favour of Tenderbids. 

EWM failed to comply with the decision of the Adjudicator and did not pay the awarded sum to Tenderbids within seven calendar days of the date of decision as required. In response, Tenderbids initiated enforcement proceedings of the Adjudicator’s decision pursuant to Section 6(11) of the CCA 2013. The enforcement application was initially to be heard on 19 December 2024 and was part-heard the next day but was then adjourned to facilitate the exchange of submissions. EWM raised its jurisdictional challenge for the first time on 19 December 2024. 

Legal Arguments before the Court 

During the reconvened hearing of 20 February 2025, EWM challenged the jurisdiction of the Adjudicator to make a determination against them on the basis that there had been non-compliance with Section 6(2) of the CCA 2013. Section 6(2) requires that any adjudication process must commence with the valid service of a Notice of Intention. EWM submitted that service in this case had been contractually non-compliant and therefore the Adjudicator was invalidly appointed in accordance with Section 6(4) of CCA 2013 and did not have jurisdiction to exercise his ostensible statutory functions. 

Section 10 of the CCA 2013 stipulates that a Notice of Intention may be served in a manner agreed by the parties or in the event that no such agreement exists, by post or any other effective means. EWM referred to Clause 5 of the Articles of Agreement to the parties’ construction contract which stated that all notices arising under the CCA 2013 (other than payment claims) were to be delivered by registered post. The construction contract was derived from the ubiquitous Royal Institute of the Architects of Ireland form of contract (2017 edition, where quantities form part of the contract) and Clause 5 of the Articles was unamended. Counsel for EWM submitted that the language in the construction contract was both clear and mandatory. They sought to rely on the English Technology and Construction Court decision of Primus Build Ltd v Pompey Centre Ltd and another² which held that notice not validly served would generally deprive an adjudicator of any jurisdiction. 

Tenderbids accepted that it had failed to effect service in the strict manner prescribed by the construction contract but argued that EWM suffered no prejudice as they had received and acknowledged the Notice of Intention as was served by email, so could not be said to have been kept “in the dark”. 

Tenderbids, in their submissions, had referred to the decision reached by the English Technology and Construction Court in Rhode v Markham-David³ as an authority for the proposition that fair procedures in an adjudication would be achieved where the adjudicator provided ample opportunity to engage with the process. 

Counsel for Tenderbids also contended that EWM ought to have raised a jurisdictional challenge at the earliest opportunity and having materially delayed, they waived this right. Tenderbids’ Counsel also emphasised that EWM and its legal representative did not convey to Tenderbids at any time during the Adjudication that the Notice of Intention had been invalidly served. 

A further argument was ventured; that the parties’ established form of communication was through email and that this, along with EWM’s indication that they intended to participate in the adjudication, served as a waiver of the parties’ strict contractual rights around the service of the Notice of Intention by registered post. Finally, it was submitted that the request by EWM’s solicitor for an extension of time to issue a Response in the adjudication constituted an acquiescence by EWM to the adjudication proceedings.   

Judgment

In refusing to enforce the Adjudicator’s decision, Mr Justice Simons placed considerable emphasis on the parties’ agreement on the means of delivery of contractual notices. He held that the language in Section 10 of the CCA 2013 was clear and that it protected the parties’ entitlement to determine the method by which notices would be delivered, which in this case, was through registered post, with the exception of payment claims. Mr Justice Simons rejected the argument that service ‘ought to be deemed good’ where EWM suffered no prejudice as the CCA 2013 did not permit the Court to dispense with the prescribed method of delivery of notices under Section 10. Mr Simons J. emphasised that the adjudication scheme under the CCA 2013 was based on the principle of ‘pay now, argue later’ and that the starting point for this scheme was the service of a Notice of Intention. 

Mr Justice Simons further dismissed Tenderbids’ argument that as email was the ‘common and established form of communication’ between the parties, this practice constituted a waiver of the requirement to deliver a Notice of Intention by registered post. He held that while EWM did engage with Tenderbids through email, it was not inconsistent for them to maintain a position that statutory notices be served in accordance with the method prescribed by the contract. He rejected the submission that email was the ‘preferable method of service between the parties’ in recognition of the parties’ agreed a method of service under the contract, i.e. that notices would be served by registered post. 

Mr Justice Simons also rejected Tenderbids argument that EWM ought to have ‘reserved its right’ to bring a jurisdictional challenge at the earliest opportunity and the implication that EWM should have engaged and raised these issues during the adjudication process. He held that as there was a failure to properly serve the Notice of Intention, the adjudication process was a ‘nullity’ and that EWM were not obliged to engage with a nullity. It therefore stands to reason that the Adjudicator’s findings around effective service consequentially fall away.

In relation to case law from the United Kingdom as relied on by the parties, Mr Justice Simons observed that the High Court in England and Wales had determined that a failure to comply with a prescribed method of service did invalidate the adjudication process and deprived the adjudicator of any jurisdiction. 

Conclusion   

This judgment represents a significant development in the High Court’s interpretation of the CCA 2013 in respect of the statutory adjudication process. The decision of Mr Justice Simons serves as a helpful reminder of the authority afforded to parties’ commercial agreements concerning service of notices, as reflected in their construction contract, particularly in the expeditious forum of statutory adjudication. It is therefore imperative that parties avoid deviating from their contractual notice requirements when a dispute is to be referred to adjudication.   

Byrne Wallace Shields LLP's Infrastructure, Construction and Energy Group acted for Tenderbids in its enforcement application. Authors: Patrick Carty and Andrew McVea.
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¹ Tenderbids Limited trading as Bastion v Electrical Waste Management Limited [2025] IEHC 139.

² [2009] EWHC 1487 (TCC).