Another judgement in support of the adjudication procedure in Ireland

Summary of the case

DNCF Ltd and Genus Homes Ltd [2023] IEHC 490.

As stated in the first paragraph of the judgement of Mr. Justice Garrett Simons the Construction Contracts Act 2013 (“CCA 2013”) has put in place a statutory scheme whereby payment disputes under construction contracts can be referred to adjudication. The enforcement illustrates (again) that the courts understand the importance of that legislation and shows they are not willing for it to be undermined by a party who is aggrieved by an adjudicator’s decision.

Here the paying party sought to resist the application for leave to enforce on the basis that the adjudicator’s decision had been reached in breach of fair procedures. Judge Simons rejected that claim and concluded that “that there is no basis for saying that there had been a breach of fair procedures on the part of the adjudicator”.

We know from John Paul Construction Ltd v. Tipperary Co-Operative Creamery Ltd [2022] IEHC 3 that it is unlikely that a decision would be enforced where the resisting party could prove there was an obvious/material breach of fair procedures that had a significant effect on the overall outcome of the adjudication. So why was the argument not successful in this case?

In this case the adjudicator had not refused to consider an argument or defence put to him, and he had not gone off on “a frolic of his own”. These are reasons that might have succeeded.

Instead, the complaint here amounted to saying that the adjudicator should have requested further and better particulars from the respondent as to its defence. Judge Simons stated that it is not in incumbent upon the adjudicator to canvass an issue with the parties, there is no obligation to invite the parties to elaborate upon their submission or produce further evidence and conclusions can be reached by the adjudicator on the basis of the materials presented by the parties. The timetable alone for adjudication dictates that it cannot be an iterative process that should allow the parties continuous opportunity to perfect their respective positions.

Further, in its defence the respondent cited a body of case law from both England and Wales and Scotland. Referencing Aakon Construction Services Ltd v. Pure Fitout Associated Ltd [2021] IEHC 562 the court again reiterated the fact that the CCA 2013 differs from the legislation in those jurisdictions and so the parties should not lose sight of the distinct features of the CCA 2013. Such case law should be relied upon with caution unless endorsed by the irish courts and in this case Judge Simons expressly stated that his judgment was not to be taken as doing so.

Lessons to be learnt

This judgement is a stark reminder that parties to an adjudication must set out their case as clearly as possible with the relevant supporting evidence. Parties should not assume the adjudicator will be able to sift through words and documents to pick out and focus only on points that either party consider are at the heart of the dispute referred. If you have not addressed arguments and/or information presented by the other side that does not exclude it from being considered by the adjudicator in reaching their decision. If either parties position is not clear or not well evidenced, it is not for the adjudicator to request clarifications. Structure in drafting the submissions is often vital in achieving this and the content should be appropriate to and not distract from the argument being.

When undertaking an adjudication the parties should be aware of the risks involved and it is advisable to seek Quigg Goldens expert advice to assist with the process including dealing with procedural and jurisdictional issues.

Please get in contact with our experts on Adjudication in Ireland and the UK here. To read more about our Adjudication services, visit our Adjudication services page.