I have written about adjudication in Ireland a number of times over the years and I’m continuing my infrequent series today with another look at it, this time with a focus on enforcement of an adjudicator’s decision. But first, a recap…
Adjudication in Ireland
It all started with the Construction Contracts Act 2013, which applies to construction contracts entered into after 25 July 2016.
In case you missed it, I talked about it back then (see Adjudication in Ireland is finally a reality), when I told you that it has many similarities with our own Construction Act 1996. For example, it uses the same terminology (like construction contracts and construction operations), and has payment and adjudication regimes that are similar to the UK’s payment and adjudication regimes.
I also told you about some of the key differences, such as:
- Contracts with a value of less than €10,000 are excluded (section 2(1)(a)).
- Owner-occupied dwellings where the floor area is less than 200 m2 and the employer does or intends to occupy the property are excluded. Like our residential occupier exclusion but not quite because, if the house is big enough, the Act will still apply.
- Only payment disputes can be referred to adjudication (section 6(1)).
- The right to suspend for non-payment (section 5(1)) is lost if either party serves a notice of adjudication, referring the payment dispute to adjudication (section 5(3)). Similarly, the right to suspend for non-compliance with an adjudicator’s decision (section 7(1)) will be lost if the adjudicator’s decision is referred to arbitration or the courts (section 7(3)), which must include any enforcement proceedings.
Another key difference is the fact that the Irish government has set up an adjudication service, the Construction Contracts Adjudication Service, which is responsible for matters in relation to implementing the Act. The DJEI’s website is a really useful place to start as it sets out outline details of the Act and then links through to the many resources that have been published.
Unlike in the UK, in Ireland the government has published a Code of Practice governing the conduct of adjudications. It is dated 25 July 2016 and is binding on all adjudicators operating under the Act. It requires adjudicators to be “impartial, independent and only adjudicate where satisfied that no actual conflict of interest exists” and to “observe the principles of procedural fairness, which shall include giving each party a reasonable opportunity to put their case and to respond to the other party’s case”.
I looked at the code when it was still a draft (see More thoughts on adjudication in Ireland). It sets out an adjudicator’s responsibilities to the parties, explains how the appointment process will be conducted (whether that is by agreement between the parties or via an application to the Chairperson of the Construction Contracts Adjudication Panel), and goes on to explain the referral process and procedures. In many ways, the adjudicator’s powers are similar to those set out in paragraph 13 of the Scheme for Construction Contracts 1998.
Enforcement of an adjudicator’s decision in Ireland
I have also discussed enforcement of an adjudicator’s decision before (see Comparing adjudication enforcement in Ireland and England).
Section 6(11) of the Construction Contracts Act 2013 states that an adjudicator’s decision “if binding” shall be enforceable “by action or, by leave of the High Court, in the same manner as a judgment or order of that Court”.
I’m told it takes quite some time to enforce a judgment in Ireland. Therefore, instead of the system we’ve come accustomed to here, with the TCC endeavouring to enforce an adjudicator’s decision within a similar time frame to the 28 days allowed for the adjudication itself, there is an unknown variable – enforcement.
To date, we haven’t seen any court judgments that focus on issues specifically related to the enforcement of an adjudicator’s decision, although we have seen a number of other issues debated, such as:
- Whether the adjudicator, who was appointed by the chairman of the Construction Contracts Adjudication Panel, had jurisdiction to hear the dispute because the bulk of the works that were carried out were completed before the Act came into force in July 2016 (see O’Donovan and another v Bunni and others).
- Who pays the costs of the application and the form of the court order (Gravity Construction Ltd v Total Highway Maintenance Ltd).
- Whether an interim injunction ought to be granted preventing one party from making payment under an on-demand performance bond (Construgomes & Carlos Gomes SA v Dragados Ireland Ltd and others).
(I discussed Bunni and Gravity in Welcome to 2021, and Construgomes in Ireland’s Construction Contracts Act 2013 before the courts.)
I’ve no idea why this is, but perhaps it is because of the differences with the enforcement process in Ireland and the time it takes. I wonder if that is why there is a new High Court Practice Direction, which took effect earlier this week. Issued by Mary Irvine, the President of the High Court, this provides that all enforcement applications will be:
“… made returnable before the High Court (Mr. Justice Simons) at 10.30 on the first available Wednesday…
The presiding judge on the return date will give such directions as he or she considers necessary to ensure that the application will be heard and determined with all due expedition.”
Hopefully, this should give adjudicator’s decisions in Ireland the teeth they need, although those wanting to enforce an adjudicator’s decision will have to hope that Mr Justice Simons has plenty of time free on a Wednesday!
