Irish Construction Adjudication Update: Tenderbids Judgments – The Importance of Procedural Compliance and Rejection of “Smash & Grab” Adjudications in Ireland

January 2026

Killian Dorney and Jonathan Chambers

Tenderbids Ltd Trading As Bastion v Electrical Waste Management Ltd [2025] IEHC 139; [2026] IEHC 5

The Irish High Court has delivered, in quick succession, two landmark judgments that significantly clarify how statutory adjudications for construction contracts can and should be progressed in Ireland.

The first judgment ([2025] IEHC 139), given on 13 March 2024, involved the first case in which an Irish Court had refused to enforce an adjudicator’s decision. It confirmed the need to comply strictly with the formal aspects of the Construction Contracts Act 2013 (“CCA”) and the formal requirements in a construction contract when commencing adjudications.

The second judgment ([2026] IEHC 5), given on 12 January 2026, decisively rejected the application of so-called “smash and grab” adjudications in Ireland.

Both judgments arose on the same facts, between the same parties and on the same project in respect of two-related adjudications. The facts of each case are both ordinary and worryingly familiar. The claimant contractor in each case (“Tenderbids”) was engaged as the main contractor to carry out the construction of a metal waste recycling facility for the respondent employer (“EWM”).

The First Adjudication

A party may exercise its right to refer a payment dispute to adjudication by serving a “Notice of Intention to Refer Payment dispute to adjudication” (“NOITR”). This is an important requirement of the CCA requiring strict compliance. The NOITR precedes the appointment of the adjudicator and is necessary for the adjudicator to gain jurisdiction to decide a dispute.

The CCA provides that the parties 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” (section 10(2)). The construction 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 might be delivered by email. Unfortunately, for Tenderbids, although their NOITR was sent by email – it was not sent by registered post.

Notwithstanding that, the Adjudicator decided there was valid service of the NOITR via email. The adjudication progressed and, ultimately, the Adjudicator decided that EWM was liable to pay sums to Tenderbids. EWM failed to comply with the Adjudicator’s decision so Tenderbids sought to enforce the decision in the Irish Courts.

Contrary to the Adjudicator’s decision, Simons J. found that there had been a failure to comply with the agreed method of service of the NOITR. Consequently, the entire adjudication process was a nullity. Simons J. found that where the CCA permits parties to determine the method by which notices are to be delivered, if the parties failed to follow their agreed regime, the adjudication process had no effect.

This is a significant warning for all parties in adjudication in Ireland – procedural compliance is a strict requirement. This principle of strict compliance applies even if:

The other party suffers no prejudice i.e. Irish courts cannot dispense with the method of service agreed by the parties.
The other party did not engage or raise an objection that the adjudication process was invalid i.e. other party was not required to do anything and could effectively sit back and wait.
Email was the ‘common and established form of communication’ between the parties i.e. use of email for other day-to-day communications did not constitute a waiver of contractual requirements.
The adjudication is carried out fairly i.e. jurisdiction cannot be conferred on an adjudicator who has never been validly appointed.

Clearly, the lesson to be learned that it is important for those commencing adjudication to get proper legal advice at the outset and to comply strictly with both the terms of the CCA and terms of the construction contract. The lesson for recipients of such notices is to check for any jurisdictional issues and to take any jurisdictional objections either early in the adjudication itself (or if appropriate and the point is clear) at any later enforcement stage. The case is also perhaps a warning to those concluding construction contracts to draft their payment and service provisions carefully.

The Second Adjudication [2026] IEHC 5

Not to be defeated, Tenderbids served a (fresh) NOITR, this time by registered post, in 2025.

Under this fresh NOITR, Tenderbids argued that as EWM had failed to provide a “Response to Payment Claim Notice” within the relevant statutory time period i.e. not later than 21-days from the Payment Claim Date, and that this failure resulted in a default payment becoming due for the full amount claimed by Tenderbids in its Payment Claim Notice.

This approach is known colloquially as a “Smash and Grab” adjudication and is permitted in England & Wales. Until now, there was no clarity on what the position was in Ireland as the CCA does not expressly state that a default payment arises if no Response to Payment Claim Notice is delivered. The Adjudicator decided that EWM’s failure to provide a Response to Payment Claim Notice did result in a default payment to Tenderbids for the full amount claimed.

Again, EWM failed to comply with the Adjudicator’s decision and the matter went to enforcement. Unfortunately for Tenderbids, again, the Irish Court did not agree with the approach taken by the Adjudicator.

In his judgment, Simons J. posed the simple questions: (1) are “smash and grab” adjudications available in Ireland? And, (2) what consequences, if any, follow if a party fails to respond to a payment claim notice?

Taking the second question first, Simons J. noted the legislation as drafted provided some odd outcomes:

Section 4(3) of the CCA provides that if a party “contests” that a sum is due and payable, then that party “shall” deliver a Response to Payment Claim Notice specifying why this sum is not owed, the amount (if any) that it proposes to pay, and the reasons for the difference. If the paying party proposes to pay a lesser amount in its Response to Payment Claim Notice section 4(3)(b) expressly provides that the paying party “shall pay the amount” by the day on which the amount is due.
By contrast, and critically, section 4(3) is silent as to consequence for the paying party if no Response to Payment Claim Notice at all is delivered. Section 4(3) simply does not provide that in the absence of a Response to Payment Claim Notice that the paying party is required to pay the full amount specified in the notice.

Therefore, according to Simons J.’s, analysis, the CCA’s current drafting has the very odd consequence that:

The CCA regulates the position where a Response to Payment Claim Notice is delivered proposing a lesser amount: the paying party is required to pay the nominated amount by the due date, but,
The CCA does not regulate the position where a response is not delivered at all as the CCA contains no equivalent express provision addressing the consequence of a complete failure to

Simons J. was not prepared to imply into section 4 a default obligation to pay the amount specified in a Payment Claim Notice, where no Response to Payment Claim Notice is delivered.

He concluded that he was unable to imply or infer such a consequence or sanction as this would be an illegitimate exercise of judicial law-making. This conclusion was based on the large choice of possible consequences which might follow a failure to respond to a Payment Claim Notice – ranging from allowing the other party to immediately invoke adjudication after the 21-day period for response expires, to precluding a party who failed to respond from ever contesting the underlying merits in any forum.

Simons J. was also influenced by the fact that during the progress of the CCA through the Oireachtas an amendment which would have introduced an express obligation to pay the amount claimed in the Payment Claim Notice in the absence of a response was not adopted.

He found that the adjudicator had erred in law in allowing a “smash and grab” award, and that this was one of the exceptional cases in which the Court was justified in refusing enforcement.

Concluding thoughts

These two judgments provide welcome clarity for all those involved in payment disputes in the Irish construction industry:

Procedural compliance is an absolute necessity and failure to strictly adhere to relevant terms may result in the entire adjudicative process being a nullity. Legal advice should be sought at the outset.
The judgments confirm that the Irish adjudication system is different from its UK counterpart. Critically, a failure to issue Responses to Payment Claim Notices will not result in an entitlement to a default payment.
Whilst this has the advantage that the Irish adjudication process remains a forum for resolving genuine payment disputes and does not become a mechanism for exploiting procedural errors, it does have the disadvantage that employers may feel that they can ignore Payment Claim Notice’s with impunity. It remains to be seen whether the Oireachtas will introduce an amendment to provide for default payments.
From a contractor’s and sub-contractor’s perspective they are now on notice that “smash and grab” adjudication awards are unavailable under the CCA in Irish adjudication. Their claims must be substantively justified, and they must be prepared to argue on the merits.
However, employers and paying parties should not be complacent. Although “smash and grab” adjudication is off the table in Irish adjudication, it is likely that contractors and sub-contractors will (and should) seek greater protection, including seeking default payment as a matter of contract, which Simons J. expressly referred to as an alternative.

If you have any questions regarding the information discussed in this article, or require assistance in adjudication and protecting your interests in 2026, please contact Killian Dorney and Jonathan Chambers.

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.

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