Notices, Payment and Adjudication after Tenderbids

An entitlement is only as good as the notice that supports it. In Part 2 of this series, we examine notices, payment and adjudication in Ireland after Tenderbids, and how most disputes can be avoided.

In Part 1, we examined how risk is allocated in construction contracts and the risks that most often generate claims. Part 2 turns to how that allocation becomes a payment dispute, and what recent Irish judgments mean for those managing and delivering projects.

Notices as the Gateway to Entitlement

As we noted in our series on adjustments to the contract sum under the Public Works Contract (PWC), procedural compliance is the gateway to entitlement. Under the PWC claims procedure:

1. Clause 10.3.1 requires the contractor to give notice to the Employer’s Representative (ER) as soon as practicable, and in any event within 20 working days after it becomes aware, or should have become aware, of the matter. Within a further 20 working days, it must provide all relevant facts, a detailed calculation and a proposal for the adjustment.
2. Clause 10.5 requires the ER, within 20 working days, to request further information (once only), agree the proposal, decline it or make a determination.

The Royal Institute of the Architects of Ireland (RIAI) 2025 form now takes a similar approach. Under Clause 6.11, the contractor must notify the Architect within 20 working days after it becomes aware, or should have become aware, of the event. It must then provide full details within a further 25 working days, and failure to comply releases the employer from liability.

The RIAI 2017 form had no explicit time bar: Clause 30 required the contractor to give notice “immediately”, and employers commonly amended it to align with the public works notice provisions. Under both forms, variations are to be “fairly valued” (Clause 13 of the 2017 form; Clause 6.4 of the 2025 form).

Failure to comply means no entitlement. The English courts have held that a notice clause operates as a condition precedent only if clearly worded but, where it is, a late claim will be barred regardless of its merits. Every notice period should be diarised.

Tenderbids: No “Smash and Grab” in Ireland

In Tenderbids Limited t/a Bastion v Electric Waste Management Limited [2026] IEHC 5, the High Court (Mr Justice Simons) refused to enforce an adjudicator’s decision of €1,402,457.13 plus VAT made on a “smash and grab” basis. The RIAI Blue Form contract for a metal waste recycling facility at Rathcoole had a contract sum of €6,986,339.73 plus VAT. The employer did not respond to a payment claim notice dated 17 May 2024. The adjudicator awarded the full amount on that basis alone and declined to consider the employer’s variations defence.

Legislation in England and Wales expressly provides for a default payment where no valid notice is served. However, Simons J cautioned that English case law cannot simply be read across to the Construction Contracts Act 2013 (2013 Act). Section 4(3) of the 2013 Act provides for payment of the amount proposed in a response but is silent on a failure to respond. In the Court’s view, choosing a consequence would amount to judicial law-making. Because the error went to the core of the adjudication, the Court refused enforcement.

The referral was nonetheless a valid payment dispute. The employer had conceded that point before the adjudicator, so the Court permitted it to argue the point only exceptionally. A party should not rely on a procedural default to win a payment dispute in Ireland, but paying parties should still respond within 21 days, because silence forfeits the opportunity to frame the dispute.

The Wider Line of Irish Authority

Much of the Irish adjudication case law comes from Simons J as the judge in charge of the Construction Contracts Act list. Four themes emerge:

• Pay now, argue later: decisions bind until final resolution and are enforced summarily.
• A narrow court role: review is confined to the referred dispute and whether fair procedures were respected.
• Set-off and counterclaims: set-off is a defence, but an independent counterclaim requires consent.
• Raise every point before the adjudicator: new arguments at enforcement are allowed only exceptionally.

Enforcement is by originating notice of motion under Order 56B of the Rules of the Superior Courts. In Finnegan Contracts Ltd v Killycard Developments Ltd [2024] IEHC 752, the Court granted leave to enforce. It also gave effect post-judgment to the adjudicator’s interest rate of €38.10 per day. Adjudication in Ireland is fast and robust, but it remains a hearing on the merits.

Connaughton: Is It a Payment Dispute?

In Connaughton v Timber Frame Projects Ltd t/a Timber Frame Ireland [2025] IEHC 469, the High Court (Simons J) refused in full to enforce a decision on an employer’s claim of approximately €224,579.68 for repayment and consequential loss. The claim followed termination for repudiatory breach at common law. The statutory right to refer is confined to disputes about a payment provided for under the construction contract. A common-law damages claim is not such a dispute, so the decision was a nullity. By contrast, a dispute under an express contractual termination regime, such as one entitling the employer to the cost of a replacement contractor, could be a payment dispute.

In Tenderbids v Electric Waste Management, the referral was valid but there was no default award; in Connaughton v Timber Frame, the referral itself was outside the 2013 Act. Before referring, a party should ask whether its claim is for a payment the contract provides for.

Decisions to Watch

In BAM Building Limited v National Paediatric Hospital Development Board [2026] IEHC 443 (Mr Justice Sanfey, 3 July 2026), the High Court indicated that four sets of proceedings should be stayed following conciliators’ recommendations that they should be so stayed pending determination of a module on the validity of the Phase B instruction. The decision is under appeal, and the appeal was listed for commercial directions on 9 October 2026.

In Ashdrum Lodge Limited t/a Kiernan Homes v Barbouti [2025] IEHC 522 (Mr Justice Stack, 21 August 2025), the Court considered the extent of an architect’s duties. It also considered the effect of the client’s conduct, including contributory negligence.

Appeals in relation to both cases are listed for callover on 6 November 2026. Both are decisions to watch and may change on appeal.

Avoiding Disputes

Disputes are usually symptoms of earlier, avoidable failures: poorly defined scope, design development after award, unrealistic programmes, inadequate records, notification failures, poor communication, misaligned commercial objectives and failure to manage change. Collaborative models such as NEC4, early contractor involvement, partnering and alliancing can change behaviour as well as allocation. However, they work only if the parties operate them as intended. Projects that avoid disputes do not have fewer problems; they identify and deal with them earlier. They do so through a live risk register, regular commercial reviews, contemporaneous records, updated programmes, prompt management of variations, compliance with notices and early escalation.

Conclusion

Risk is managed through the documents. They should be written carefully and then followed. Our key takeaways are:

1. Diarise every notice: contractors and ERs should track the PWC Clause 10.3 periods of 20 working days plus a further 20, and parties on the RIAI 2025 form should track the Clause 6.11 periods of 20 plus 25 working days.
2. Respond to payment claims within 21 days, with reasons: The decision in Tenderbids v Electric Waste Management means there is no default award in Ireland, but a response frames the dispute.
3. Check the claim before referring: confirm that the claim is for a payment the contract provides for.
4. Keep the record: contemporaneous records win adjudications on the merits.

For advice on risk management in delivering projects, please contact Jarleth Heneghan, Cassandra Byrne, Liam McCabe or your usual William Fry contact.