1: The Irish High Court dismisses an application to enforce an adjudicator’s decision in light of a jurisdictional objection

Tenderbids Ltd trading as Bastion v. Electrical Waste Management Ltd [2025] IEHC

Factual Background

The applicant, Tenderbids Ltd, purported to refer a payment dispute to adjudication to the respondent, Electrical Waste Management Ltd, via email. The parties had agreed under the express terms of the contract that such notices would be delivered by registered post. The adjudicator decided that the referring party had served a valid notice of intention to refer, declaring that delivery by email is an effective means to serve such a notice. The applicant instituted High Court proceedings in Ireland seeking leave to enforce the adjudicator’s award. The question for the Irish High Court was whether the recognised failure to comply with the contractually established method for delivery of notices invalidated the adjudication process.

Judgment

The Irish High Court dismissed the application to enforce the adjudicator’s decision on the basis that that the payment dispute was never validly referred to adjudication. It was recognised that the notice of intention to refer the dispute to adjudication was not delivered in the manner agreed between the parties under the express provisions of the contract. The Irish High Court therefore determined that the purported adjudicator’s award was a nullity.

Mr. Justice Simons’ provisional view on costs was that the respondent should be entitled to recover the cost of proceedings as against the applicant. The judge noted that had the respondent raised the jurisdictional objection at an earlier date and had the applicant withdrawn its proceedings at that stage it may have had good grounds to resist the cost order. However, the applicant chose to proceed with the case despite a jurisdictional objection and was unsuccessful.

Although the case was heard in the High Court in Ireland the equivalent UK legislative provisions were briefly considered. The Court noted that the High Court in England and Wales has “consistently held that failure to comply with the prescribed method of service invalidates the adjudication process”. As observed by Coulson J in Primus Build Ltd v. Pompey Centre Ltd [2009] (at paragraph 15) that position is because an adjudicator derives their jurisdiction from the notice of adjudication.

Takeaway points

• The case highlights the importance of complying with the express contractual notice provisions when serving the notice of intention to refer a dispute to adjudication and of raising a jurisdictional objection at the earliest opportunity so as to increase the prospects of recovering your legal costs.

2: Contract risk: is your agreement consistently drafted?

John Sisk and Son Limited -and- Capital & Centric (Rose) Limited John Sisk and Son Ltd v Capital & Centric (Rose) Ltd [2025] EWHC 594 (TCC) (14 March 2025)

Factual Background

Capital & Centric (Rose) Limited (“C&C” or “the Employer“) engaged John Sisk and Son Limited (“Sisk” or “the Contractor“) to carry out construction works under a JCT Design and Build 2016 contract (“the Contract“).

Clauses 2.42.1 – 2.42.3 of the Contract stated that Sisk would take full responsibility for all risks in relation to the existing site, including in relation to the condition of existing structures and ground conditions. However, clause 2.42.4 stated that “This clause 2.42 shall be subject to item 2 of the Clarifications“.

The Contract definition of “the Clarifications” was “The clarifications headed “Contract Clarifications” contained within Volume 2, Appendix 2.9 of the Employer’s Requirements”. The electronic version of the Contract contained two clarifications documents – which were labelled “contract clarifications” and “tender submission clarifications” respectively.

Sisk initiated an adjudication to determine which party bore responsibility for ground conditions under the Contract. The Adjudicator found in favour of C&C and decided that Sisk bore sole responsibility for ground conditions, having regard to the wording of clauses 2.42.1 – 2.42.3.

Having been unsuccessful at adjudication, Sisk initiated Part 8 proceedings to obtain a declaration as to which party bore responsibility for ground conditions under the Contract.

Proceedings

During the Part 8 proceedings, Sisk argued that the “contract clarifications” document made clear that the Employer (rather than Sisk) was to take responsibility for existing structures at the site. As such, where additional cost or delay was incurred as a consequence of existing structures, Sisk would be entitled to an extension of time and/or loss and expense.

C&C’s position was that the contents of the “tender submission clarifications” document supported the wording of clauses 2.42.1 – 2.42.3, which placed responsibility for existing structures solely with Sisk.

Sisk’s position was that the “tender submission clarifications” document represented the parties’ initial positions during the start of the contract negotiation stage, whereas the “contract clarifications” document represented the final agreed position, in which C&C would take responsibility for existing structures and ground conditions.

By contrast, C&C argued that the “tender submission clarifications” represented the final agreed position between the parties, such that responsibility for existing structures was to lie with Sisk.

Decision

The Court decided in favour of Sisk, thereby overturning the adjudicator’s prior decision.

Whilst the wording of clauses 2.42.1 – 2.42.3 was not itself in dispute, the pivotal issue turned on whether the term “Clarifications” included the “contract clarifications” document (which indicated that existing ground risks were to sit with C&C), and/or the “tender submission clarifications” document (which placed existing ground risks with Sisk).

The Court decided that the Contract definition of “the Clarifications” should be interpreted as referring only to the “contract clarifications” document. Whilst the Court accepted that the “tender submission clarifications” document was potentially relevant to the interpretation of the Contract, it did not fall within the scope of “the Clarifications” as defined, and so was afforded less weight than the “contract clarifications” document.

Takeaway points

This decision demonstrates the importance of ensuring that a building contract accurately records the final position reached between two negotiating parties. This issue is particularly important in circumstances where the parties’ position on contractual risk allocation changes throughout the negotiation of a contract.

In this case, it was apparent that the Contract could be plausibly interpreted in two contradictory ways in relation to the allocation of risk for existing ground conditions. Indeed, the Court commented that the Contract was “not a model of clarity”. Had the Contract been checked for such inconsistencies prior to execution, the parties may well have avoided having to incur the time and costs of the adjudication and subsequent Part 8 proceedings.

Lastly, the Court reiterated that draft judgments are strictly confidential. In this case, the draft judgment had been shared with representatives of C&C’s agents, and its planning representatives. Whilst the Court accepted that this was attributable to C&C’s genuine failure to appreciate the embargo on circulating draft judgments to third parties, the Court reminded the parties that failure to treat draft judgments as strictly confidential may be treated as contempt of court, which may attract civil/criminal liability. As a practical rule, any sharing of a draft judgment beyond legal advisors (including to individuals within the party itself) should be expressly approved by the Court.

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Other cases referenced

Primus Build Ltd v. Pompey Centre Ltd [2009] EWHC 1487 (TCC), 126 ConLR 26