At last, a definitive position in relation to 'Smash and Grab' Adjudications in Ireland!
Summary
The High Court has refused to enforce an adjudicator's "smash and grab" decision ordering payment solely because the employer did not serve a payment claim response notice, holding that the Construction Contracts Act 2013 does not provide for a default direction to pay in those circumstances.
Case details
Court/citation: High Court, Tenderbids Ltd t/a Bastion v Electrical Waste Management Ltd IEHC 5.
Judge/date: Mr Justice Garrett Simons, judgment delivered 12 January 2026.
Context: Application for leave to enforce an adjudicator's decision under s.6(11) of the Construction Contracts Act 2013.
Background and procedural history
The dispute arose from an RIAI Blue Form contract for the construction of a metal waste recycling facility at Tay Lane, Greenogue, Rathcoole, Dublin, with a contract sum of €6,986,339.73 plus VAT.
The contractor had served a payment claim notice (17 May 2024), and the employer did not issue a response; following an earlier failed enforcement attempt (due to service defects), the contractor issued a fresh notice of intention to refer on 18 March 2025 seeking (in substance) payment of €1,402,457.13 (ex VAT) on the basis that no response issued.
Issues before the Court
The Court identified three key issues for determination:
- What qualifies as a "payment dispute" under the Act?
- What arguments can be raised at the enforcement stage (including whether new arguments can be introduced), and
- The consequences of failing to respond to a payment claim notice (i.e., whether the Act implies a default obligation to pay)
Decision and reasoning
The Court held that the referral still met the "payment dispute" gateway because it asserted a right to payment under the construction contract read with the Act; the referral was not retrospectively invalid merely because the claim might fail on the merits
Although the employer had conceded the "default direction to pay" point before the adjudicator, the Court, in exceptional circumstances, permitted the employer to raise the point at enforcement because it concerned the integrity and architecture of the statutory adjudication scheme.
On the substance, the Court held that s.4 is silent on any consequence of non-response and—given multiple plausible policy consequences—there was no clear basis to "read in" a default obligation to pay the claimed amount; therefore, the adjudicator erred in law in issuing a default direction to pay.
Practical implications (and costs)
This judgment indicates that Irish adjudication under the Construction Contracts Act 2013 should not be treated as enabling UK-style "smash and grab" outcomes based solely on failure to issue a payment claim response notice.
The Court refused enforcement in the exercise of its discretion because the adjudicator's error went to the fairness of the procedures and, if enforced, would wrongly preclude a merits-based defence without legislative authority.