The High Court has refused K&J Townmore Construction Limited leave to bring judicial review proceedings aimed at stopping a construction payment adjudication before the adjudicator delivers a decision.
In a judgment delivered on 17 August 2023, Mr Justice Twomey ruled that Townmore’s challenge to adjudicator Damien Keogh’s jurisdiction should be dealt with, if necessary, during enforcement proceedings under the Construction Contracts Act 2013. The court did not decide whether Keogh had jurisdiction over the dispute or whether any sum was due.
Keogh had been appointed to adjudicate a payment dispute between Townmore, the main contractor, and Deslend (Mechanical) Limited, trading as Cobec Engineering Group, its subcontractor. The dispute concerned a subcontract for mechanical and electrical work at a development at Eblana Avenue, Dún Laoghaire.
Cobec referred a payment claim of €3,789,814.82 to adjudication in June 2023. Townmore argued that the claim was premature or invalid and that the adjudicator could not consider Cobec’s claims for loss and expenses arising from alleged delay and disruption. Those were Townmore’s submissions, not findings by the court.
After Townmore asked him to resign, Keogh said on 18 July that he would continue. He acknowledged that he could not make a binding decision on his own jurisdiction and said a court could rule on the issue in later proceedings. Townmore sought leave to challenge that decision by judicial review.
Justice Twomey held that the statutory enforcement process provided an appropriate route to test jurisdiction after the adjudicator’s decision. He said the Act’s scheme was designed to resolve construction payment disputes quickly, with the adjudicator normally due to decide within 28 days. The court noted that a decision is not enforceable without High Court approval, where jurisdictional and fair-procedure objections may be considered.
The judgment also cited submissions for Cobec that a judicial review could take about 11 months, while enforcement proceedings were likely to be dealt with within four to six weeks. Those time estimates were submissions the court described as uncontroverted, not findings about the timetable in this case.
The court refused leave. It directed the parties to engage on outstanding matters and provide any draft court order to the Registrar. The case was provisionally listed for mention on 5 October 2023 if final orders were still required. The ruling addressed the procedural route only; it did not resolve the payment claim or the adjudicator’s jurisdiction.