Background

The applicant sent a notice of intention to refer the dispute to adjudication (the Notice) to the respondent via email. Following a decision in its favour, the applicant sought to enforce the adjudicator's award of €1,531,830.85 in the High Court. 

During the High Court proceedings, a query arose regarding on whether the method of service of the Notice invalidated the adjudication process. 

In dealing with this query, the applicant submitted that the failure to deliver the Notice in the agreed manner was not fatal to the adjudication process and that service ought to be deemed good because the respondent did not suffer any prejudice by reason of the alleged defect in service. 

In reply, the respondent pointed to the "clear and unequivocal written agreement between the parties" that all notices arising under the Construction Contracts Act, 2013 (CCA 2013) must be delivered by registered post, save for payment claim notices. The respondent contended that, as this was not done, the Notice had not been validly served and therefore, the adjudicator did not have jurisdiction to deal with the matter.

Decision

The Court examined section 10 of the CCA 2013 which provides: 

1. The parties to a construction contract may agree on the manner by which notices under this Act shall be delivered.
2. If or to the extent that there is no such agreement, a notice may be delivered by post or by any other effective means.

The Court examined the construction contract between the parties and noted that it explicitly required notices arising under the CCA 2013 to be sent by registered post, except for payment claim notices which could be emailed.  In light of this contractual agreement on service of notices, Mr. Justice Simons held that the failure to comply with the agreed method of delivery rendered the adjudication process invalid. Consequently, the adjudicator's award was declared a nullity, and the application to enforce the award was refused. 

Key Takeaways

1. Autonomy to agree notice provisions: The judgment highlights that the CCA 2013 gives the parties autonomy to determine how notices should be delivered and that this choice must be respected. In considering section 10 of the CCA 2013, Mr. Justice Simons noted that "There is nothing in the [CCA 2013] which authorises the court to dispense with the prescribed method of service agreed by the parties".
2. Strict compliance with agreed terms: This case underscores the importance of adhering to the specific terms agreed upon in a contract. A failure to do so could have serious consequences like invalidating an entire adjudication process
3. Legal costs: Mr. Justice Simons' provisional view on costs is that respondent should be entitled to recover the costs of the proceedings. The learned judge indicated that had the respondent raised the issue of defective service of the Notice at an earlier date and had the applicant then withdrawn its proceedings, it may have had good grounds for resisting such a costs order. 

Conclusion 

This case serves as a cautionary tale for parties in construction contracts and highlights the importance of following agreed procedures for service of notices.