Proportional Costing in Construction-Adjudication Enforcement after a Late Jurisdictional Objection – Commentary on Tenderbids Ltd t/a Bastion v Electrical Waste Management Ltd [2025] IEHC 339

1. Introduction

This supplemental judgment, delivered by Simons J. on 18 June 2025, concerns the allocation of legal costs following the substantive decision in Tenderbids Ltd v Electrical Waste Management Ltd (Tenderbids (No. 1)) where enforcement of an adjudicator’s award under the Construction Contracts Act 2013 (“CCA 2013”) was refused because the adjudication itself was a nullity owing to defective service of the “notice of intention to refer”.

The applicant, Tenderbids Ltd trading as Bastion (“Bastion”), sought to reverse the default rule on costs notwithstanding its loss on the merits. Electrical Waste Management Ltd (“EWM”)—the respondent—contended that as the wholly successful party it should receive its costs in the ordinary way. The court was therefore asked to refine the extent to which section 169 of the Legal Services Regulation Act 2015 (“LSRA 2015”) permits departures from the “costs follow the event” principle, especially in fast-track enforcement applications under the CCA 2013 where a jurisdictional objection is unveiled late in the day.

2. Summary of the Judgment

The “starting point” under s.169 LSRA 2015 remains that an entirely successful party is entitled to its costs; any deviation must be justified by reference to the statutory factors.
Since EWM succeeded in defeating the enforcement application, it is presumptively entitled to recover its costs.
The applicant’s attempt to shift or share costs—arguing that EWM raised the decisive jurisdictional objection only at the “eleventh hour” and therefore acted unreasonably—was rejected.
The court did, however, exercise a limited discretion: EWM’s recoverable costs are to be measured by reference to a single one-hour hearing on 20 February 2025. No costs may be recovered for the earlier listings on 19–20 December 2024 that became abortive.
For the separate “costs of the costs” application, the court’s provisional view is again that EWM should be paid, absent further argument.

3. Analysis

3.1 Precedents Cited and Their Influence

Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189
- Section 169 sets the default rule; a successful party does not have to prove it conducted litigation “in the most cost-effective manner possible”.
- Failure to run a preliminary strike-out application can be a relevant—but not decisive—factor.
- Simons J. adopted this nuanced approach, stressing that the bar for depriving a successful party of costs remains high; litigation must be conducted “fairly, reasonably and proportionately”, not perfectly.
Aakon Construction Services Ltd v Pure Fitout Associated Ltd [2021] IEHC 562
- Defined the narrow grounds on which enforcement of an adjudicator’s award may be refused.
- Confirmed that CCA 2013 enforcement is a summary, affidavit-based procedure.
- The court relied on these principles to emphasise that “modularising” issues via a preliminary motion would undermine the statutory objective of expedition; hence EWM was not obliged to do so.
Litigation-conduct cases such as Mahon v Keena (destruction of documents), Flannery v Dean (“pure fantasy” claim), and Hanrahan v Waterstone (material change of evidence).
- These were invoked by Bastion to illustrate scenarios where courts penalised misconduct.
- Simons J. distinguished each: the misconduct there was egregious; EWM’s delay was “nothing close” to that magnitude.

3.2 Legal Reasoning

The judgment methodically applied s.169 LSRA 2015 to the facts:

Default Rule Applied – Because EWM was wholly successful, costs follow the event.
Was Departure Justified?
- Bastion argued that late disclosure of the jurisdictional objection amounted to unreasonable conduct.
- The court examined two potential duties it allegedly breached: (a) duty to participate in the (null) adjudication, and (b) duty to raise a preliminary issue within the enforcement proceedings.
- Both were rejected as inconsistent with the CCA 2013’s fabric of speedy, single-hearing enforcement and with the principle that a party need not “engage with a nullity”.
Effect of Settlement Offer – EWM’s open offer on 19 December 2024 (each side bearing its own costs) was reasonable and weighed against Bastion, which refused and proceeded to lose.
Proportional Adjustment – Recognising minimal prejudice from the non-earlier disclosure, Simons J. trimmed EWM’s costs by excluding fees for the aborted December listings and by capping the brief/solicitor instruction fees with reference to a one-hour February hearing.

3.3 Impact of the Decision

Construction-Adjudication Enforcement – Clarifies that respondents can legitimately unveil a pure “knock-out” jurisdictional point even at a late stage; they will not necessarily be penalised on costs, provided their conduct remains fair and proportionate.
Strategic Litigation Behaviour – Encourages applicants to reassess enforcement proceedings promptly when a jurisdictional objection surfaces; persistence in weak positions may translate into liability for full costs.
Proportional Costing Device – Introduces a practical template for judges to confine recoverable fees to the reality of hearing length, promoting cost proportionality without stripping a successful party of its entitlement.
Broader Costs Jurisprudence – Emphasises that s.169 LSRA 2015 does not impose a duty to “litigate in the cheapest imaginable manner”, maintaining continuity with traditional costs-follow-the-event principles but refining them under contemporary statutory language.

4. Complex Concepts Simplified

“Nullity” – A proceeding or process that has no legal effect from the outset; here, the adjudication was void because the initiating documents were not properly served.
“Summary Procedure” – A streamlined court process decided on affidavits without a full oral trial, intended to deliver swift justice (Order 56B RSC).
“Costs follow the event” – The winning party normally recovers its legal costs.
Section 169 LSRA 2015 – Statutory framework governing costs in civil litigation; sets the default position while listing factors (e.g., conduct, complexity, offers) that may justify a different order.
“Costs of the costs application” – Expenses incurred arguing about who should pay costs; courts may award these to the ultimately successful side in the costs dispute.
“Adjudicated” costs – Under Part 10 LSRA 2015, if parties cannot agree quantum, a legal costs adjudicator formally determines the amount payable.

5. Conclusion

Simons J.’s supplemental decision consolidates three practical lessons:

The LSRA 2015 preserves, rather than revolutionises, the costs follow the event principle; any departure requires convincing evidence of unfair, unreasonable, or disproportionate conduct.
In CCA 2013 enforcement settings, respondents are not compelled to launch preliminary motions on pure jurisdictional points; a single expedited hearing is consistent with the statutory scheme.
Courts retain flexible tools to mitigate unfairness—here, by slicing out costs for abortive dates and calibrating recoverable fees to actual hearing duration—without depriving the victor of its core entitlement.

The judgment will guide practitioners in strategically handling late-emerging jurisdictional objections and framing realistic settlement decisions. It also offers a roadmap for judges seeking to balance proportionality with the legitimate expectation that success should ordinarily bring a costs recovery.