The High Court has proposed granting McGill Construction Ltd leave to enforce an adjudicator’s decision requiring Blue Whisp Ltd to pay €1,252,135.21, exclusive of VAT, or the remaining balance. The proposed judgment follows a dispute under the Construction Contracts Act 2013. Final orders had not yet been made in the judgment delivered on 19 April 2024.
Mr Justice Garrett Simons found that Blue Whisp had not established grounds to refuse enforcement. The adjudicator’s decision, made on 31 December 2023, was provisional: the underlying payment dispute could still be reheard in later arbitral or court proceedings.
Blue Whisp argued that the adjudication notice was invalid because it covered two payment claim notices. The judge held that the parties were bound by the adjudicator’s preliminary decision on that objection after Blue Whisp agreed she should determine it. He also addressed the statutory point: the 2013 Act does not require separate referrals for individual payment claim notices where they form part of a payment dispute under the same construction contract.
The respondent also said the referral was late. The adjudicator’s appointment was made on 14 November 2023. The referral email entered the recipient firm’s IT system at 11.59pm on 21 November, although it appeared in the adjudicator’s inbox at 12.01am the next day. Applying the Electronic Commerce Act 2000, the judge held that receipt occurred when the email entered the designated IT system, so the referral was within the seven-day limit.
A separate challenge about whether the referral included supporting documents was raised for the first time at the hearing. The judge ruled that this new ground, and a related service argument, could not be introduced then because the other party had been deprived of an opportunity to respond with evidence. He added that the 175-page referral could stand on its own and that the earlier provision of supporting material appeared to have occurred, though there was no direct affidavit evidence on that point.
Blue Whisp alleged that the adjudicator had failed to consider its claim over defective works. The judge found no procedural unfairness: that issue was addressed in two parallel adjudications, whose decisions came before the payment deadline for the first award. The respondent also failed to provide credible evidence that McGill would probably be unable to repay the award if required after a later rehearing.
The proposed orders include judgment for the award balance and recovery of costs. The court invited written submissions on any different form of order by close of business on 24 April 2024, with the matter listed for final orders on 26 April.