The judgment of the High Court in Tenderbids Limited [Trading as Bastion] v Electrical Waste Management Limited [2025] IEHC 339 considers the allocation of costs in the context of a failed attempt to enforce an adjudicator’s decision. As context, in earlier High Court proceedings, the respondent had successfully resisted the enforcement application on jurisdictional grounds.

Although the respondent had successfully resisted enforcement, the applicant sought a modified costs order pursuant to s169 of the Legal Services Regulation Act 2015 (LSRA 2015). The normal rule is that costs follow the event, however, s169 gives the Court a discretion to modify a costs order in consideration of: (1) the particular circumstances of the case; and (2) the conduct of the parties throughout the proceedings. Relying on s169, the applicant applied for a modified costs order arguing that the failure of the respondent to disclose its intended defence until the day before the hearing meant that the litigation had not been conducted in the most cost-effective manner.

The Court considered the impact of obliging the respondent to raise the jurisdictional concerns as a preliminary issue. Simons J, referring to his prior judgment, held that the entire adjudication process was void due to the failure of the applicant to issue the Notice of Adjudication in accordance with the construction contract. As a result, the respondent was under no obligation to engage with it. Further, penalising the respondent for failing to raise the jurisdictional matter as a preliminary issue would contravene the objective of expedition underlying the Construction Contracts Act 2013. This was because it would require a preliminary hearing in addition to the standard summary hearing based on affidavit evidence.

Simons J also dismissed the applicant’s contention that the LSRA 2015 imposed an obligation on a successful party to demonstrate that it had conducted the litigation in the most cost-effective manner and held instead that: ‘the test is whether the approach taken in respect of the preliminary issue was objectively reasonable in all circumstances of the case.’ In applying this test to the present case, Simons J held that the respondent had not acted: ‘unfairly, unreasonably or disproportionately’ because the jurisdictional issue was the sole ground on which the respondent sought to defend the proceedings. The Court also considered the respondent’s offer of settlement prior to the hearing in December 2024 and placed weight on the fact that the applicant had continued with the proceedings despite learning of the respondent’s defence. As a result, Simons J held that: ‘it cannot sensibly be said that the applicant suffered any material prejudice by reason of the respondent’s delay in disclosing its intended defence’.

The High Court awarded the respondent its costs as against the applicant save to account for the adjournment on 20 December to allow for the exchange of written submissions on the jurisdictional issue.