In Tenderbids Ltd t/a Bastion (applicant) v Electrical Waste Management Ltd (respondent) [2025] IEHC 139, the High Court in Ireland dismissed an application to enforce an adjudicator’s decision.

It is unusual for a Court to decide not to enforce an adjudicator’s decision. The grounds for doing so are narrow. The Court must be satisfied that the adjudicator lacked jurisdiction to determine the adjudication, or there must have been a breach of the principles of natural justice.

In this case, the Court found that the adjudicator had lacked jurisdiction to hear the dispute because of the means of delivery by the applicant of the notice of intention to refer a payment dispute for adjudication (“notice of intention”).

Section 10 of the Construction Contracts Act 2013 (the “Act”) provides that the parties to a construction contract may agree on the manner by which notices under the Act shall be delivered.

The contract was an amended form of the RIAI Yellow Form, August 2017 ed. The articles of agreement stated that all notices arising under the Act shall be delivered by registered post. (The contract further provided that notices under section 4 of the Act could be delivered by email.)

According to the applicant, it emailed a notice of intention to two directors of the respondent, and it received an email delivery receipt and “email opened” notification.

An adjudicator was nominated by the Construction Contracts Adjudication Service (“CCAS”). The CCAS issued two notices to both parties by post and email in respect of the appointment of the adjudicator. The adjudication proceeded without the respondent’s participation. When the adjudicator issued its decision, it included a finding that the applicant had served a valid notice of intention: delivery by email was a valid method, i.e. an effective means to serve such a notice.

The Court did not agree with this approach. The applicant’s argument was essentially that it was sufficient to ground a valid adjudication process by serving the notice of intention by any effective means. However, such an argument rendered section 10(1) of the Act superfluous. The parties had expressly agreed in writing that all notices arising under the Act (other than payment claim notices) would be delivered by registered post. The legislation required that this choice be respected.

The Court noted that the Act creates a statutory scheme of adjudication predicated on the principle “pay now, argue later”. This was very much to the benefit of a referring party. The gateway was the service of a notice of intention. Nothing in the Act authorised the Court to dispense with the prescribed method of service agreed by the parties.  The suggestion that service by email was “the preferable method of service between the parties” was not well founded.

The impact of failing to comply with the agreed method of service was that the “entire adjudication process was a nullity in consequence of the failure of the applicant to deliver a notice of intention to refer in the manner prescribed. The respondent was not obliged to engage with a nullity”.

The judgment is a reminder of critical importance in adjudications of complying with the statutory rules and principles outlined in case law. It is also a reminder of the potential consequences more generally of taking a course of action regardless of contractual terms requiring a different approach.