Tenderbids Ltd [Trading as Bastion] v Electrical Waste Management Ltd (Approved)

Factual and Procedural Background

The dispute arises under the Construction Contracts Act 2013 concerning the delivery method of a notice of intention to refer a payment dispute to adjudication. The parties, Company A (Applicant) and Company B (Respondent), had a construction contract dated 19 October 2021, which expressly required notices under the Act to be delivered by registered post, except payment claim notices which could be sent by email. The Applicant purported to deliver the notice of intention to refer by email rather than registered post on 21 June 2024. An adjudicator was appointed and made an award in favour of the Applicant. The Respondent did not participate in the adjudication process. The Applicant then sought leave from the High Court to enforce the adjudicator’s award. The hearing was adjourned to allow written and oral submissions on the legal consequences of the failure to comply with the agreed method of notice delivery. Judgment was reserved and subsequently delivered by Judge Simons on 13 March 2025.

Legal Issues Presented

1. Whether the failure to comply with the contractually agreed method of delivering a notice of intention to refer a payment dispute to adjudication (i.e., delivery by registered post) invalidates the adjudication process.
2. Whether service by email, contrary to the contract terms, can be deemed effective or sufficient to confer jurisdiction on the adjudicator.
3. Whether the Respondent was obliged to engage with the adjudication process despite the alleged invalidity of the notice of intention to refer.
4. The implications of statutory interpretation principles on the contractual autonomy of parties under the Construction Contracts Act 2013.

Arguments of the Parties

Applicant's Arguments

• The failure to deliver the notice by registered post is not fatal to the adjudication process.
• Service by email should be deemed good service, particularly as the Respondent did not suffer prejudice from the delivery method.
• Email was the preferable method of service between the parties based on their established communication practices.
• The Respondent ought to have reserved its right to challenge jurisdiction early in the adjudication process.
• Relied on case law concerning service of court proceedings allowing courts to deem service sufficient despite technical defects.

Respondent's Arguments

• Adjudicator’s jurisdiction depends on valid service of the notice of intention to refer in accordance with the parties’ express written agreement and section 10 of the Act.
• The parties expressly agreed that notices under the Act (other than payment claim notices) must be delivered by registered post, which must be respected.
• There is no legislative power to dispense with the agreed method of service or to “forgive” non-compliance.
• The Respondent was not obliged to participate in or engage with an adjudication process that was a nullity due to invalid notice service.
• Relied on case law from England and Wales holding that failure to comply with prescribed service invalidates adjudication jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43	Principles of statutory interpretation emphasizing context, purpose, and legislative intent.	Guided the court’s approach to interpreting section 10 of the Construction Contracts Act 2013, rejecting a strained construction to override clear contractual terms.
Lancefort Ltd v. An Bord Pleanála [1997] IEHC 38	Service of court proceedings can be deemed sufficient despite technical defects under court rules.	Distinguished as involving court proceedings service and rules not applicable to statutory adjudication notices.
Sean Dunne (A Bankrupt) [2015] IESC 42	Application of court rules allowing validation of defective service in court proceedings.	Not applicable to statutory adjudication notices lacking equivalent legislative provisions.
O'Brien v. Meehan [2021] IECA 205	Similar to above, concerning service of court proceedings and validation of defects.	Distinguished on the basis that adjudication notices are not court pleadings and not governed by these rules.
Primus Build Ltd v. Pompey Centre Ltd [2009] EWHC 1487 (TCC)	Failure to validly serve adjudication notice deprives adjudicator of jurisdiction.	Supported the principle that invalid service invalidates adjudication jurisdiction.
AM Construction Ltd v. Darul Amaan Trust [2022] EWHC 1478 (TCC)	Adjudication is a nullity without proper service of notice of adjudication.	Reinforced the requirement for valid notice service to confer jurisdiction.
Rhode v. Markham-David [2007] EWHC 1408 (TCC)	Fair procedure does not confer jurisdiction where adjudicator was never validly appointed due to invalid notice service.	Clarified that procedural fairness cannot cure jurisdictional defects.

Court's Reasoning and Analysis

The court began with the statutory framework under the Construction Contracts Act 2013, particularly section 6 granting the right to refer payment disputes to adjudication and section 10 governing the manner of notice delivery. The parties had expressly agreed that notices under the Act (except payment claim notices) must be delivered by registered post. The Applicant’s notice was sent by email, contrary to this agreement.

The court rejected the Applicant’s argument that service by email could be deemed effective or that the Respondent’s lack of prejudice justified validation. It held that such an interpretation would render section 10(1) meaningless by allowing parties to circumvent their agreed method of notice delivery. The court emphasized the importance of respecting parties’ contractual autonomy as mandated by the statute.

The Applicant’s reliance on case law permitting courts to deem defective service of court proceedings sufficient was found inapposite because the adjudication notice is not a court pleading and is not governed by the Rules of the Superior Courts, which allow for such remedial measures. The court found no equivalent statutory power to forgive non-compliance with the agreed notice delivery method in the Construction Contracts Act 2013.

The court further rejected the Applicant’s suggestion that the Respondent was required to engage with the adjudication process despite the invalid notice. The adjudication process was a nullity from the outset due to the defective notice, and the Respondent was under no obligation to participate.

The court also considered and gave limited weight to case law from England and Wales, noting that while domestic legislation must be interpreted on its own terms, those cases generally support the principle that invalid notice service deprives the adjudicator of jurisdiction.

Holding and Implications

The court held that the failure to deliver the notice of intention to refer adjudication by the contractually agreed method of registered post rendered the purported referral invalid. Consequently, the adjudicator’s award is a nullity and cannot be enforced.

The application for leave to enforce the adjudicator's award was refused. The court provisionally ordered that the Respondent recover costs against the Applicant, noting that although the jurisdictional objection was raised late, the Applicant chose to continue proceedings despite the objection and was unsuccessful.

No new legal precedent was established beyond affirming the strict requirement to comply with agreed notice delivery methods under the Construction Contracts Act 2013 and the consequent invalidity of adjudications founded on defective notices.