Connaughton v Timber Frame Projects Ltd trading as Timber Frame Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 01 September 2025
• Neutral Citation: [2025] IEHC 469
• Docket Number: 2024 644 MCA

In the Matter of the Construction Contracts Act 2013

Between

Albert Connaughton

Applicant

and

Timber Frame Projects Ltd T/A Timber Frame Ireland

Respondent

[2025] IEHC 469

2024 644 MCA

THE HIGH COURT

Statutory adjudication – Enforcement – Construction Contracts Act 2013 – Applicant seeking leave to enforce a decision of an adjudicator – Whether the adjudicator had jurisdiction under the Construction Contracts Act 2013 to entertain the claim

Facts: The applicant, Mr Connaughton (the employer/referring party), applied to the High Court seeking leave to enforce a decision of an adjudicator. The proceedings presented the following issues of principle: whether a claim by an employer/principal for damages, which claim is made consequent upon the termination of a construction contract for repudiatory breach, comprises a dispute “relating to payment”; if not, then the claim is not one which may properly be referred for statutory adjudication under the Construction Contracts Act 2013. The proceedings also raised the following two additional issues: first, whether the adjudication process complied with fair procedures; second, whether the underlying construction contract should be regarded as tainted with illegality and hence void or unenforceable in circumstances where, or so it was alleged, the contract works would have entailed an element of unauthorised development, i.e. the demolition of part of an existing dwelling house without the benefit of planning permission.

Held by Simons J that the right to refer a dispute to statutory adjudication is confined to circumstances where the dispute relates to a payment which is provided for under the construction contract. He held that the referring party must either be asserting or resisting a claim to be paid an amount which is expressed or stipulated in the terms of the construction contract; this element is a prerequisite to a valid referral to statutory adjudication. On the facts of the case, he held that the dispute, which had purportedly been referred to adjudication, did not relate to a payment provided for under the construction contract. He noted that there was no clause under the construction contract which made provision for payment to the employer in the event of wrongful termination by the respondent, Timber Frame Projects Ltd (the contractor); rather, the employer had purported to exercise his common law right to terminate the construction contract for repudiatory breach. Simons J noted that the employer asserted that having accepted the repudiatory breach on the part of the contractor, he was entitled to a combination of reliefs; the dispute was one relating to a claim for monetary compensation at common law (and, possibly, at equity if and insofar as the claim for the return of the monies paid had been framed in restitution). Having had regard to the wording of s. 6 of the 2013 Act, Simons J held that the distinction between termination of a construction contract by way of the acceptance of a repudiatory breach at common law, on the one hand, and by way of the exercise of a contractual right to terminate, on the other, was of crucial importance; the right to refer a dispute to statutory adjudication only arises in the case of the latter. He held that this was not a payment dispute; it followed that the adjudicator did not have jurisdiction under the 2013 Act to entertain the claim and that the adjudicator’s decision was a nullity and could not be the subject of an enforcement order under s. 6(11) of the 2013 Act.

Simons J held that the relief sought in the proceedings must be refused in its entirety.

Relief refused.

Appearances

Alan Philip Brady for the applicant instructed by Horwich Farrelly Ireland LLP

Patricia Hill for the respondent instructed by William Fry LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 1 September 2025

INTRODUCTION

1 The Construction Contracts Act 2013 has put in place a scheme whereby payment disputes under construction contracts can be referred to mandatory statutory adjudication. An adjudicator's decision is provisionally binding on the parties and is subject to summary enforcement.

2 These proceedings take the form of an application for leave to enforce a decision of an adjudicator. Section 6(11) of the Construction Contracts Act 2013 provides that an adjudicator's decision can, with the leave of the court, be enforced in the same manner as a judgment or order of the High Court.

3 The default position is that the successful party is entitled to enforce an adjudicator's decision pro tem, with the unsuccessful party having a right to reargue the underlying merits of the payment dispute in subsequent arbitral or court proceedings. This approach is sometimes referred to informally as “ pay now, argue later”. The High Court does, however, enjoy a discretion to refuse leave to enforce an adjudicator's decision.

THE ISSUES

4 These proceedings present the following issue of principle. Does a claim by an employer/principal for damages, which claim is made consequent upon the termination of a construction contract for repudiatory breach, comprise a dispute “ relating to payment”. If not, then the claim is not one which may properly be referred for statutory adjudication under the Construction Contracts Act 2013.

5 These proceedings also raise the following two additional issues. First, whether the adjudication process complied with fair procedures. Second, whether the underlying construction contract should be regarded as tainted with illegality and hence void or unenforceable in circumstances where, or so it is alleged, the contract works would have entailed an element of unauthorised development, i.e. the demolition of part of an existing dwelling house without the benefit of planning permission.

DESCRIPTION OF THE PARTIES

6 The moving party in these proceedings will be described in this judgment as “ the employer” or “ the referring party”, and the respondent as “ the contractor or “ the respondent”, to reflect their status under the construction contract and in the adjudication process, respectively.

PROCEDURAL HISTORY

7 These proceedings were instituted on 20 December 2024. The originating notice of motion was first returnable before the court on 14 January 2025. On the return date, the moving party, i.e. the employer under the construction contract, was represented by solicitor and counsel. The contractor/respondent was not legally represented. However, a director of the company (Mr. Declan Bourke) sought an adjournment in order to allow the company to obtain legal representation. To facilitate this, a hearing date was fixed for 13 February 2025, with a direction that legal submissions and any replying affidavit on behalf of the contractor/respondent be filed by 4 February 2025. This is a longer lead time than is normal in the Construction Contracts List.

8 On the hearing date, Mr. Bourke applied for a further adjournment. Mr. Bourke indicated that he had arranged a consultation with a prospective solicitor for the following week. Mr. Bourke explained, separately, that he had an immovable commitment which would preclude him from attending a hearing until the following month (March 2025). I accepted this explanation as genuine and as justifying a longer adjournment than normal. The hearing was adjourned, on a peremptory basis, to 18 March 2025.

9 The application was part-heard on 18 March 2025. The application was then adjourned to allow the parties to file supplemental written legal submissions. The submissions were filed on 21 May and 27 May 2025, respectively. The hearing resumed on 30 June 2025 and judgment was reserved to today's date.

ADJUDICATOR'S JURISDICTION: “DISPUTE RELATING TO PAYMENT”

10 One of the first matters to be considered by the court, in determining an application to enforce an adjudicator's decision, is whether the adjudicator had jurisdiction over the underlying dispute. The legislation confers a special status upon an adjudicator's decision, and it would undermine the legislative intent were the “ pay now, argue later” concept to be erroneously extended to disputes other than those identified in the Construction Contracts Act 2013. The court will not lend its authority to enforce an adjudicator's decision unless the underlying dispute is one which is properly amenable to statutory adjudication.

11 The point was put as follows in Aakon Construction Services Ltd v. Pure Fitout Associated Ltd [2021] IEHC 562 (at paragraphs 24 and 25):

“The ‘ binding’ status is only conferred on an adjudication which meets the criteria prescribed under the Construction Contracts Act 2013. A court, in exercising its discretion to grant leave to enforce, must be entitled to consider whether a purported adjudication meets the statutory criteria. To take an obvious example, the provisions of the Construction Contracts Act 2013 only apply to construction contracts entered into after 25 July 2016. The court would need to be satisfied that this temporal criterion had been fulfilled before it would grant leave to enforce. See, by analogy, the judgment of the High Court (O'Moore J.) in O'Donovan v. Bunni [2021] IEHC 575.

On the same logic, it would seem to follow that the court must also be satisfied that the adjudication has been made in respect of a ‘ payment dispute’. Unlike the position obtaining under the equivalent UK legislation, the statutory scheme of adjudication is confined to payment disputes and does not extend to other types of dispute which might arise in the context of a construction contract.”

12 In the present proceedings, the application to enforce the adjudicator's decision is opposed, principally, on the ground that the underlying dispute is not one which is amenable to statutory adjudication. It is contended that a dispute relating to payment must have its foundation in a particular term under the construction...