The Court has again given support to adjudication by granting leave to enforce an adjudication decision in McGill Construction Ltd (“referring party”) v Blue Whisp Ltd (“respondent”) [2024] IEHC 205, rejecting four grounds of opposition.

Validity of “notice of intention to refer” to adjudication

The respondent argued that the notice of intention to refer was invalid, submitting that “payment dispute” under the Construction Contracts Act 2013 (the “Act”) is confined to a complaint that an individual “payment claim notice” has not been paid, but that the notice of intention in this case included disputes relating to more than one payment claim notice.

This had been raised by the respondent as a preliminary issue in the adjudication and the judge had to consider whether the adjudicator was able to issue a decision on this issue which would be binding on the parties.  As a general principle, an adjudicator does not have jurisdiction to make a binding determination in relation to his or her own jurisdiction to hear an adjudication, unless the parties give the adjudicator such jurisdiction. Here, in response to the respondent’s objection to the notice of intention to refer, the adjudicator had asked the parties to confirm whether they wished to confer jurisdiction on her to decide this issue, and both parties had answered in the affirmative. The judge confirmed that the adjudicator’s decision was therefore binding on this issue. In any event, the Judge found no legislative requirement for separate adjudication referrals for individual “payment claim notices” and agreed that the notice was valid.

Period in which to refer payment dispute to adjudicator

The Act requires the referring party to refer the payment dispute to the adjudicator within seven days of appointment. The respondent argued that the referral of the payment dispute was made outside this period. This argument hinged on the referring party having sent an email, and that email arriving in the adjudicator’s IT system, at 23.59 hours on one date, which would have been in time, while arriving in the adjudicator’s email inbox at 00.01 hours on the following date, which would have been out of time. The respondent, citing the Electronic Commerce Act 2000, argued that the email should be regarded as having been received once it arrived in the inbox. The Judge rejected this, finding that, where the intended recipient designates an email address at which electronic communications are to be received, an email is deemed to have been received at the time it enters the information system (rather than when it comes to the attention of the addressee).

Fair procedures

The respondent argued that the adjudicator failed to consider a defence that monies owed should be reduced by way of set-off or damages for allegedly defective works. However, the allegation of defective works had also been raised in two parallel adjudication referrals made by the respondent. In deciding the current adjudication, the adjudicator deliberately staggered payment dates so that the respondent could receive the decisions in the parallel adjudications before the final payment deadline. There was no breach of fair procedures, rather, the “approach was, in truth, in ease of the Respondent” who “was, in effect, given an opportunity to make a better case in the two parallel adjudications”.

Referring party’s ability to repay the adjudicator’s award (if it transpired that the monies were not properly owing to the referring party)

The respondent argued there was a question mark over the referring party’s ability to repay the adjudicator’s award if it transpired that the monies were not properly owing to the referring party. However, the respondent failed to discharge the evidential burden of demonstrating a probable inability of the referring party to repay the award. In the current proceedings it was neither necessary nor appropriate to consider whether, given the “pay now, argue later” principle, it would ever be appropriate to refuse to enforce an adjudicator’s award by reference to the applicant’s financial position.