Construction Contract Act 2013 - Notices of Intention to Refer - Be Careful!

17/03/2025

High Court Ruling on Tenderbids Ltd v. Electrical Waste Management Ltd: Strict Compliance with Contractual Notice Requirements in Adjudication

Overview

In the recent High Court case [2025] IEHC 139, Tenderbids Ltd t/a Bastion v. Electrical Waste Management Ltd, the court addressed a crucial procedural issue under Ireland's Construction Contracts Act 2013: whether a notice of intention to refer a payment dispute to adjudication, delivered by email instead of the contractually agreed method of registered post, invalidates the entire adjudication process. The judgment, delivered by Mr. Justice Garrett Simons on 13 March 2025, has significant implications for parties to construction contracts and the enforceability of adjudication awards1.

Basis of the Dispute

The dispute arose from a construction contract between Tenderbids Ltd and Electrical Waste Management Ltd, executed on 19 October 2021, using the RIAI (Yellow Form) (August 2017 edition). The contract explicitly stated that all notices under the Construction Contracts Act 2013 (CCA) must be delivered by registered post, except for payment claim notices under section 4 of the Act, which could be sent by email.

Tenderbids Ltd attempted to initiate adjudication by sending a notice of intention to refer a payment dispute via email, rather than by registered post as required by the contract. The respondent, Electrical Waste Management Ltd, did not participate in the adjudication process; nonetheless, the adjudicator made an award in favour of Tenderbids Ltd. Tenderbids then sought to enforce this award in the High Court.

What Was Said: Arguments from Both Sides

Applicant (Tenderbids Ltd):

Argued that service by email should be deemed sufficient, especially since the respondent received and opened the email and suffered no prejudice.
Cited case law suggests that courts may overlook technical defects in service if actual notice was achieved and no prejudice resulted.
Claimed that email was the "preferable method of service between the parties," reflecting their established communication practice.
Asserted that the respondent should have raised any jurisdictional challenge at the earliest opportunity in the adjudication process.

Respondent (Electrical Waste Management Ltd):

Emphasised that the contract and section 10 of the CCA required strict compliance with the agreed method of service—registered post.
Argued that the adjudicator's jurisdiction depended on valid service of the notice, and failure to comply rendered the adjudication process a nullity.
Highlighted that the legislative intent was to respect parties' contractual autonomy regarding notice provisions.

The Court's Findings

Key Points from the Judgment:

The court found that the parties' explicit agreement on the method of service (registered post) must be respected, as mandated by section 10(1) of the Construction Contracts Act 2013.
The applicant's argument that any "effective means" of service suffices was rejected, since it would render the parties' contractual agreement and the statutory provision meaningless.
The court distinguished this case from others where courts had discretion to "forgive" defects in service under the Rules of the Superior Courts, noting that no such discretion exists under the CCA for adjudication notices.
The use of email for day-to-day communications did not amount to a waiver of the contractual requirement for registered post for statutory notices.
The respondent was not obliged to engage with an adjudication process that was a nullity from the outset due to invalid service.

Conclusion and Order:

The court ruled that the failure to serve the notice following the contract meant the payment dispute was never validly referred to adjudication.
The adjudicator's award was declared null and void, and the application to enforce it was refused.
The court provisionally awarded costs to the respondent, noting the applicant's decision to proceed despite the jurisdictional objection.

Key Takeaways from the Case

Strict Compliance with Contractual Notice Provisions: Where parties have expressly agreed on a method for delivering statutory notices under the Construction Contracts Act 2013, that method must be strictly followed. Failure to do so invalidates the adjudication process, regardless of whether the respondent received the notice or suffered prejudice.
No Judicial Discretion to "Forgive" Non-Compliance: Unlike the service of court proceedings, there is no statutory or procedural rule allowing courts to overlook defects in service of adjudication notices under the CCA1.
Contractual Autonomy Upheld: The judgment reinforces the principle that parties' contractual choices regarding notice requirements are to be respected and enforced by the courts.
Jurisdictional Challenges: Respondents are not required to participate in or object within an adjudication process that is a nullity due to invalid service; non-participation does not amount to a waiver of their rights.
Practical Implications: Parties to construction contracts should carefully review and comply with notice provisions to ensure the validity of any subsequent adjudication or enforcement proceedings.

This case serves as a clear warning: in statutory adjudications under the Construction Contracts Act 2013, procedural shortcuts or informal practices cannot override the express terms of a contract. Compliance with agreed notice procedures is not a mere technicality—it is fundamental to the validity of the adjudication process.