Since the Construction Contracts Act 2013 (the CCA 2013) was commenced, it has been unclear if a payee in adjudication is entitled to obtain a default decision for the amounts claimed in a payment claim notice if the paying party fails to respond to that notice.
Simons J of the High Court has now clarified in Tenderbids Limited t/a Bastion v Electrical Waste Management [2026] IEHC 5 that no such default entitlement exists. “Smash and Grab” adjudications, which are a feature under the equivalent UK legislation, are not a feature under CCA 2013.
The factual background
The parties had entered into a construction contract in the form of an RIAI Blue Form for the construction of a metal waste recycling facility. A dispute arose between the parties and was referred to adjudication. The subject of the adjudicator’s decision (and this case) was a payment claim notice that the contractor had submitted but which the employer had failed to respond to. The adjudication was predicated exclusively on the failure to respond to the payment claim notice. The adjudicator found that because the employer failed to respond to the payment claim notice, the contractor was, by default, entitled to payment in full for the amounts specified in the notice.
The legal background
Section 4(3) of the CCA 2013 provides that if a payer contests a claimed amount, it shall issue a response to a payment claim notice within 21 days of the payment claim date. Unlike the equivalent UK legislation, the CCA 2013 does not set out that the amount claimed is payable by default. Indeed, the CCA 2013 does not specify any consequence for failing to issue the response. Therefore, the main issue in this case was whether a default direction to pay should be “read into” the CCA 2013 as the intended consequence for a failure to respond to a payment claim notice.
The decision
The court found that a default direction to pay could not be read into CCA 2013 as the intended consequence of failure to respond to a payment claim notice. The court noted that:
There are a number of policy choices open as to what the consequence for non-response should be. At one end of the spectrum, the consequence might simply be to allow the payee to invoke the adjudication process immediately once the prescribed twenty-one day period has passed without a response. At the other end, the consequence might be that a paying party who fails to respond to a payment claim notice should be precluded from ever contesting the underlying merits in any forum, i.e. the consequence would extend beyond adjudication and would also infect arbitral or court proceedings. There is nothing within the Act which makes it possible to ascertain which of the potential forms of consequence the Oireachtas has chosen. In the absence of any such guidance, it would represent judicial law-making for the court to choose one over the others.
While this appears to leave open the question as to what the consequences are of a failure by a paying party to respond to a payment claim notice, the judgment is clear that a dispute in relation to a payment claim notice that is not responded to, may still be referred to adjudication:
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 and/or under the Construction Contracts Act 2013… The question is whether the referring party is asserting (or resisting) a claim for a payment which is said to be provided for under the construction contract and/or under the Construction Contracts Act 2013. If so, then the dispute is amenable to adjudication. On the facts of the present case, the contractor at all times asserted a right to a payment under the construction contract read in conjunction with section 4 of the Act. Accordingly, the dispute met the definition of a “payment dispute” (emphasis added).
Once referred to adjudication, such a dispute is a standard adjudication on the merits (i.e. the payee will have to prove, on the merits, that it is entitled to the amounts specified in the payment claim notice).
The impact
This judgment will have the immediate impact of prohibiting “Smash and Grab” adjudications. Payees will now have to prove their entitlement to the amounts specified in a payment claim notice that is not responded to by the paying party.
More generally the judgment:
While the court was willing to permit the employer in this instance to “commit a volte-face” and argue a point it had previously conceded in the adjudication, the court emphasised the “exceptional circumstances” and the “fundamental significance” of the legal point at issue (i.e. the legality of “Smash and Grab” adjudications in the Irish system). That question went “to the very core of the statutory scheme of adjudication” and in the interests of “ensuring the integrity of the overall system of adjudication and enforcement” the court was willing, in this one case, to consider arguments that were not made before the adjudicator.
The judgment is likely to cause parties to consider how best to deal with payment claim notices and the strategy for responding to such notices. For example, payees may seek to include an express provision in their contracts to provide that the consequence of a failure to respond to a payment claim notice is that the total value of the payment claim notice will become due and owing.
The judgment is a landmark decision and follows in a line of recent Irish case law interpreting the CCA 2013. That line started with Aakon Construction Services Ltd v Pure Fitout Associated Ltd, in which a “Smash and Grab” adjudication was enforced. The legality of “Smash and Grab” adjudications was not challenged in that case and so Simons J did not address the issue, but he did note that he may address the issue if it was challenged in a future case. In Tenderbids [2026] the issue was challenged and we now have clarity that “Smash and Grab” adjudications are not permitted under the CCA 2013. The clarity brought about by these decisions is likely to be welcomed by parties involved in adjudications.
For further information in relation to this topic or any related matter, please contact Clare Cashin, Partner, Paul Hughes, Senior Associate, Paul McNamee, Associate or your usual contact on the Construction & Engineering team.
Date published: 19 January 2026
