High Court dismisses application to enforce Adjudicator’s award due to invalid Notice of Intention to Refer

Intention to Refer

Since the commencement of the statutory adjudication regime in Ireland in July 2016, the courts have been hugely supportive of adjudication. Despite various novel arguments advanced by respondents seeking to resist the enforcement of adjudicators’ awards, the courts have enforced the vast majority of adjudicator’s decisions that have come before them.  However, the recent case of Tenderbids Ltd t/a Bastion v Electrical Waste Management[i]was a notable exception.

In that case, Mr Justice Simons found that the Adjudicator lacked jurisdiction to hear the payment dispute in circumstances where he found that the Applicant failed to deliver a valid notice of intention to refer a payment dispute for adjudication. The judgment thus underlines the importance of not only meeting the statutory requirements but also adhering to any applicable contractual terms for service of notices.

Background

Electrical Waste Management Limited (“Respondent”) engaged Tenderbids Limited (“Applicant”), trading as Bastion, to act as the main contractor for the construction of a waste metal recycling facility. During the course of the development, a dispute arose between the parties and the Applicant issued the Respondent with a payment claim notice. When the Respondent failed to make payment within the 21 days provided for, the Applicant sought to refer the dispute to adjudication pursuant to Section 6(1) of the Construction Contracts Act 2013 (the “2013 Act”).

The Applicant emailed the Notice of Intention to Refer to two of the directors of the Respondent on 21 June 2024, noting that email had been the primary method of communication between the parties during the currency of the project.  The Applicant subsequently applied to the Construction Contract Adjudication Service seeking the appointment of an Adjudicator. The appointment of the Adjudicator was confirmed to both parties by way of post and email on 9 July 2024. The Applicant then served its Applicant’s Referral on the Respondent.  No response was received from the Respondent, and ultimately the Respondent did not engage with the adjudication process that followed.

In making his decision, the Adjudicator found in favour of the Applicant and directed that payment of €1,531,830.85 be made by the Respondent within 7 days. In his decision, the Adjudicator found that the Applicant had served a valid Notice of Intention to Refer on the Respondent, saying that delivery by email is a valid method to serve a notice.

The High Court Proceedings

When the Respondent failed to make payment within the 7-day statutory period, the Applicant initiated High Court enforcement proceedings pursuant to section 6(1) of the 2013 Act seeking leave to enforce the Adjudicator’s award as well as an order entering judgment against the Respondent for the value of the Adjudicator’s award.

The Respondent’s primary defence was that the Notice of Intention to Refer was invalid as it was not served in accordance with the contract between the parties, namely an amended form of the RIAI (Yellow Form) (August 2017 edition). Under Section 10 of the 2013 Act, parties to a construction contract may agree the means by which notices under the Act shall be served. In this instance, the contract provided that all notices under the 2013 Act shall be delivered by registered post, which was contrary to the email service used by the Applicant in referring the dispute to Adjudication.

The Applicant accepted that it did not serve the Notice in the manner prescribed by the contract. However, it argued that the Respondent suffered no prejudice as it had received, by email, and acknowledged, by email, receipt of the Notice of Intention to Refer.

The Decision 

Mr Justice Simons ultimately refused to enforce the Adjudicator’s award finding that the Adjudicator lacked jurisdiction to hear the dispute. He held that the service of the Notice of Intention to Refer by the Applicant by way of email did not comply with the terms of the contract as agreed between the parties and as a result he declared the Adjudicator’s decision a “nullity”. 

He stated that the difficulty with the argument put forward by the Applicant was that it renders part of Section 10 of the 2013 Act “superfluous”, and to enforce the Adjudicator’s decision would necessitate ignoring the wording of the 2013 Act. Mr Justice Simons found that the 2013 Act clearly protects the intention of parties to a contract who have chosen a specific method for delivery of notices. This finding was in line with the courts in England and Wales where the High Court found an Adjudicator lacked authority to make a decision where contractual notice provisions had not been complied with.

The court noted the “pay now, argue later” principle central to adjudication is very much to the benefit of the referring party. It further said that the gateway to the scheme is the service of a notice of intention to refer a payment dispute to adjudication and there is nothing within the Act that allows the court to dispense with the service methods prescribed by the parties. He further added that no “implied waiver” was created where email had been the day-to-day communication method of choice between the parties.

Conclusion

Notwithstanding the courts’ strong support for the adjudication process, this judgment demonstrates that the courts will nevertheless insist upon compliance with the 2013 Act even if a party seeks to argue – perhaps legitimately – that there was no prejudice arising from the non-compliance. It is a cautionary reminder to parties, and their advisors, that when proceeding to Adjudication, it is imperative that any notices served are fully compliant with any express service and provisions in the applicable contract.

[i] Tenderbids Ltd t/a Bastion v Electrical Waste Management [2025] IEHC 139