Background

The judgment in Tenderbids Limited t/a Bastion v Electrical Waste Management Limited [2025] IEHC 139 delivered on 13 March 2025 addresses a procedural issue under the Construction Contracts Act 2013. The core issue is whether the delivery of a Notice of Adjudication by email, instead of the contractually agreed method of registered post, invalidates the adjudication process under the Construction Contracts Act 2013 (CCA 2013).

Section 6 of the CCA 2013 grants parties the right to refer payment disputes to adjudication. Section 10 allows parties to agree on the method of delivery for notices. If no agreement exists, notices may be delivered by post or any other effective means.

In this matter the parties agreed that that all notices under the CCA 2013 should be delivered by registered post, except for payment claim notices, which could be sent by email.

A dispute arose and the Referring Party sent a Notice of Adjudication by email. The adjudicator made a decision directing payment, but the Responding Party did not comply. The adjudicator found that that the Referring Party had served a valid notice , saying that delivery by email is a valid method, i.e. an effective means to serve such a notice. The Referring Party sought to enforce the decision in the High Court.

The Referring Party argued that the failure to deliver the notice by registered post was not fatal, as the Responding Party had received the notice by email and suffered no prejudice. The Responding Party contended that the adjudicator’s jurisdiction depended on the valid service of the notice, which was not achieved as per the agreed method.

Held

The court held that the parties’ agreement on the method of delivery must be respected. The failure to deliver the notice by registered post, as agreed, invalidated the adjudication process. The court found no legislative framework allowing it to forgive this failure. The adjudication process was deemed a nullity, and the adjudicator’s award was unenforceable. The court noted that:

27 … 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 court emphasized the importance of adhering to the literal and purposive approaches to statutory interpretation, as outlined by the Supreme Court in Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43. The application to enforce the adjudicator’s award was refused. The court stated that:

14 The words of the section are the first port of call in its interpretation, and while the court must construe those words having regard to (i) the context of the section and of the Act in which the section appears, (ii) the pre-existing relevant legal framework and (iii) the object of the legislation insofar as discernible, the onus is on those contending that a statutory provision does not have the effect suggested by the plain meaning of the words chosen by the Legislature to establish this. The “context” that is deployed to that end, and “object” so identified, must be clear and specific, and, where wielded to displace the apparently clear language of a provision, must be decisively probative of an alternative construction that is itself capable of being accommodated within the statutory language.