Introduction
The recent High Court decision of Tenderbids Limited [Trading as Bastion] v Electrical Waste Management Limited [2025] IEHC 139 serves as a warning of the risks of not adhering to prescribed frameworks relating to the service of notices under the Construction Contracts Act 2013 (“the CCA”). In this significant decision, which is the first time a court has refused to enforce an adjudicator’s decision under the CCA, the email delivery of a notice was held to have rendered the construction contract adjudication process invalid.
Facts
The applicant, Tenderbids Limited (“Tenderbids”), was engaged as the main contractor to carry out the construction of a waste metal facility by the respondent, Electrical Waste Management Limited (“EWM”).
A payment dispute arose between the parties in June 2024 and Tenderbids purported to refer the dispute to adjudication under the CCA. The CCA provides that a party may exercise its right to refer a dispute to adjudication by serving a notice of intention on the other party to the contract at any time.
Section 10 of the CCA states that the parties to a construction contract may agree on the manner by which notices under the CCA are to be delivered and provides that if there is no such agreement, a notice may be delivered by post or by any other effective means.
The Articles of Agreement to the parties’ contract provided that all notices arising under the CCA were to be delivered by registered post, with the exception of a payment claim notice which may be delivered by email.
The notice of intention to refer was sent by way of email by Tenderbids to two directors of EWM. Tenderbids provided evidence that they received a delivery receipt by email and an “email opened” notification.
The parties received notice by way of post and email that an adjudicator was nominated by the Construction Contracts Adjudication Service, but ultimately EWM did not participate in the adjudication process.
In the absence of any response from EWM, the adjudicator made a decision in favour of Tenderbids on 8 August 2024 directing the payment of €1,531,830.85 within seven days. The adjudicator found that the referring party had served a valid notice of intention to refer the dispute via email.
EWM failed to comply with the decision of the adjudicator and Tenderbids instituted High Court proceedings on 12 November 2024 seeking enforcement of the adjudicator’s award.
EWM submitted that there was a clear and unequivocal written agreement between the parties which provided for all notices arising under the CCA (other than payment claims) to be delivered by registered post and the failure by Tenderbids to comply with the contractually agreed method for delivery of notices invalidated the adjudication process.
Counsel on behalf of Tenderbids put forward the following arguments:
- The failure to deliver the notice of intention by registered post was not fatal and that service ought to be deemed good as EWM had not suffered any prejudice by reason of the alleged defect in service.
- EWM ought to have “reserved its right” to bring a jurisdictional challenge in the form of the adjudication process at the earliest opportunity, meaning that EWM should have engaged with the adjudication process to the extent of raising an objection that the adjudication process was invalid.
- Service by way of email was “the preferable method of service between the parties” and that this practice constituted a waiver of the requirement to deliver a Notice of Intention by registered post.
- The case Rhode v. Markham-David [2007] EWHC 1408 (TCC) was submitted as authority for the proposition that fair procedures are achieved where an adjudicator affords the responding party ample opportunity to engage with and respond to the adjudication process.
Decision
In refusing the application for leave to enforce the adjudicator’s award, Mr Justice Simons held that the impact of failing to comply with the agreed method of service of the notice of intention was that the entire adjudication process was a nullity. EWM was entitled to recover costs from Tenderbids.
Analysis
Mr Justice Simons held that the language of the CCA was clear - it entitled the parties to prescribe the method by which notices of intention are to be delivered. Here, the parties expressly agreed in the Articles of Agreement that all notices under the CCA (other than payment claim notices) were to be delivered by registered post. He held that the legislation requires that this choice must be respected.
Mr Justice Simons then dealt with each of the points raised by Tenderbids in turn:
- He rejected the argument that service ‘ought to be deemed good’ as EWM did not suffer any prejudice. He held that there is no equivalent legislative framework in the CCA to those in the cases submitted which authorises the court to dispense with the prescribed method of service agreed by the parties.
- He further held that there was no requirement that EWM should have engaged with the adjudication process to the extent of raising an objection that the adjudication process was invalid. He held that the entire adjudication process was a nullity in consequence of the failure of Tenderbids to deliver a notice of intention in the manner prescribed and that EWM was not obliged to engage with a nullity.
- He further dismissed Tenderbids’s argument that as email was the ‘common and established form of communication’ between the parties, and that this practice constituted a waiver of the requirement to deliver the notice of intention by registered post. He held that the use of email for other day-to-day communications cannot constitute an implied waiver, and that there is nothing inconsistent in a party, who engages in email communication for other purposes, insisting that the contractual formalities in relation to the delivery of statutory notices be complied with.
- Finally, he held that the case submitted was not authority for the proposition that a surfeit of fair procedures can confer jurisdiction on an adjudicator who has never been validly appointed.
Conclusion
As this decision is the first time a court has refused to enforce a decision made by an adjudicator under the CCA, it represents a significant development in the High Court’s approach to the statutory adjudication process under the CCA.
The severe and far reaching consequences of the decision in this case highlights the importance of adhering to the prescribed frameworks set out in a contract and statute relating to the service of notices.
If you wish to discuss in more detail please contact Construction and Engineering partners Rhona Henry and Alison Bearpark, or your usual Matheson contact.