The High Court (Court) recently refused to enforce an adjudicator's decision concerning a payment dispute under a statutory adjudication process under the Construction Contracts Act 2013 (Act).
This followed another recent case, which also considered an adjudicator's jurisdiction and enforcement of an adjudicator's decision, together with the application of interest for late payments. The decisions provide important insights into the evolving landscape of adjudication and enforcement of adjudication decisions in construction contract payment disputes, which can apply to any sector.
Tenderbids Limited t/a Bastion v Electrical Waste Management Limited
In March 2025, the Court considered whether a notice of intention to refer a dispute to adjudication, that was not served in accordance with the terms of a construction contract, was a valid notice sufficient to ground the commencement of a statutory adjudication process. The construction contract provided that all notices were to be by registered post, save for payment claim notices, which could be served by email. The notice of intention to refer a payment dispute to adjudication was served by email instead.
An adjudicator was nominated, but the respondent did not participate in the adjudication process, and the adjudicator made a decision. The applicant sought leave to enforce the decision. The Court considered whether the service by email invalidated the adjudication process.
The Court found:
- The adjudication process was invalid due to the failure to deliver a notice of intention to refer as prescribed by the contract;
- The Act allows parties to agree on the delivery method for notices, and if no agreement exists, notices can be delivered by post or other effective means;
- The notice of intention to refer was not delivered as agreed in the contract, making the payment dispute invalidly referred to adjudication;
- Consequently, the adjudicator's decision was a nullity, and the application to enforce must be refused.
- The respondent was entitled to recover costs from the applicant.
The courts have generally been reluctant to overturn adjudicators' decisions where compliant with the Act. However, in this instance, the Court found that the adjudicator lacked the jurisdiction to hear the dispute because of the non-compliant grounding notice. The decision emphasises the importance of following the contractual and statutory frameworks when initiating payment disputes.
Finnegan Contracts Limited and Killycard Developments Limited
Here, the applicant applied to enforce an adjudicator's decision under the Act. Issues around interest for late payment and jurisdiction were raised. In December 2024, the Court directed enforcement of the decision as the respondent had every opportunity to address the issues raised in the adjudication, no fundamental jurisdictional issue had been raised, and there was no error of law.
The Court referred to the earlier case of Aakon Construction Services Limited v Pure Fitout Associated Limited, which noted that the Courts Act interest does not apply to the enforcement of an adjudicator's decision under the Act. However, the adjudicator's decision had expressly noted a particular rate of interest was to be applied daily.
The Court decided to give effect to the adjudicator's specified rate for two reasons:
- an objective of the Act is to give effect to adjudicators' decisions as if they were enforceable as a judgment or order of the Court, and
- the adjudicator's decision to award interest is analogous to the rate of interest fixed under a contract.
The Court noted that the nature and extent of its discretion to enforce an adjudicator's decision was set out in John Paul Constructions Ltd v Tipperary Co-operative Creamery Ltd, and by applying that test, the Court directed enforcement of the decision.
Contributed by Eilís Quinlivan and Cassandra Byrne.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
