The Construction Disputes Law Review: Ireland

Introduction

Ireland is a common law jurisdiction, developing its laws both from within the jurisdiction and from other similar jurisdictions, principally England and Wales. The Constitution, Acts of Parliament, statutory instruments, regulations and European Union legislation all have legal validity.

Standard construction contracts in Ireland normally provide alternative forms of dispute resolution procedures, such as mediation, conciliation, arbitration, etc., rather than more formal litigation proceedings, with the natural consequence that there is a relatively small pool of decisions relating to construction disputes emanating from the Irish courts. Consequently, the decisions arising in the courts of England and Wales, particularly the Technology and Construction Court, are closely followed in Ireland.

Year in review

The Irish construction law sector noted two significant rulings in the past year in respect of the enforcement of the decision of an adjudicator delivered under the ambit of the Construction Contracts Act 2013.

While the Act is dated 2013, it did not provide for the advent of adjudication in Ireland until 25 July 2016, with the passing into legislation of certain statutory instruments. This is in contrast to the UK experience and two frequently mentioned cases, Macob Civil Engineering Ltd v. Morrision Construction Ltd and Bouygues (UK) Limited v. Dahl-Jensen (UK) Limited.2 These cases were both decided within 26 months of the implementation of the Housing Grants, Construction and Regeneration Act 1996, and are regarded as the seminal cases in respect of the UK judiciary giving unequivocal support to both the Act itself and the adjudication process. It took Ireland almost five years to reach a similar position. The experience in the United Kingdom also stands in contrast to Ireland's in that it has been noted that within four years of the Act becoming law an estimated 100 or so published judgments of the English courts related to adjudication matters.3

However, the past year may well be seen as the one in which adjudication in Ireland gained its wings, particularly in light of the following two prominent decisions.

Gravity Construction Limited v. Total Highway Maintenance Limited 2020/153MCA

Total Highway Maintenance (Total) refused to pay an amount awarded by the adjudicator to Gravity Construction Limited (Gravity) and sought to refer the dispute to arbitration. Consequently, Total argued the amount was not payable pending the arbitration, whereas Gravity maintained that the amount was payable in the interim until a decision was reached by either arbitration or the courts, pursuant to Section 6(10) of the Construction Contracts Act 2013 (the CCA 2013), which provides:

The decision of the adjudicator shall be binding until the payment dispute is finally settled by the parties or a different decision is reached on the reference of the payment dispute to arbitration or in proceedings initiated in a court in relation to the adjudicator's decision.

Gravity commenced proceedings to enforce the adjudicator's decision pursuant to Section 6(11) of the CCA 2013 and Order 56B of the Rules of the Superior Courts. Total requested a stay of proceedings pending the arbitration, arguing that enforcement of the adjudicator's decision was invalid while the matter was referred to arbitration.

The proceedings involved no defence to Gravity's claims and no concession to Total's pursuance of a stay of proceedings to arbitration. Total requested an adjournment to allow payment of the decided amount. Gravity resisted, requesting an order of payment.

Simons J granted an 'unless' order requiring payment within seven days, failing which an enforcement order would be issued.

Simons J noted that an adjudicator's decision is binding pursuant to Section 6(10) of the CCA 2013 and also considered matters relating to the requirements for effective Calderbank letters and costs under the Legal Services Regulation Act 2015.

Although this was a welcome development for the establishment of adjudication in the jurisdiction, it should be noted that it took nine months from the adjudicator's decision to judgment. Subsequently, the High Court has issued Practice Direction HC 105 to streamline the process, which requires that applications for leave of the court to enforce an adjudicator's decision be made before the High Court (Mr Justice Simons) at 10.30am on the first available Wednesday (papers filed the previous Friday), with the presiding judge giving directions so that the applications will be decided promptly.

Principal Construction Limited v. Beneavin Contractors Limited [2020 No. 199 MCA]

Principal Construction Limited (Principal) formally entered into a contract with Beneavin Contractors Limited (Beneavin) for construction works at a nursing home in Dublin.

The court was asked to enforce an adjudicator's decision for payment to Principal of €643,635.98. Beneavin contested both the binding nature and the enforceability of the decision on the following grounds:

  1. The wording 'if binding' in Section 6 (11) of the CCA 2013, in effect, makes it easier to resist the enforcement of an adjudicator's decision in Ireland than in the United Kingdom, as these words are not contained in the equivalent UK legislation.
  2. The adjudicator lacked jurisdiction as the applicant was barred from referring the matter to adjudication as the validity of the final certificate was not challenged within the contractual time limits.
  3. The adjudicator's refusal to allow the respondent to prosecute its counterclaim was made in material breach of natural justice.

Meehan J found that:

  1. Section 6(11) of the CCA 2013 must be considered subject to Section 6(10), which provides that an adjudicator's decision is binding until the payment dispute is finally settled by the parties. While this wording is not included in the UK legislation, the UK courts determined that a decision may only be unenforceable on jurisdictional or natural justice grounds. Therefore, Section 6(11) warrants a narrow interpretation.
  2. The lack of jurisdiction argument was grounded on the contractual provision that the final certificate becomes conclusive if no notice of arbitration is given within 10 days of issue (December 2019 in this case with the notice of adjudication issued in June 2020). Beneavin cited Coulson J's judgment in the English case of Trustees of the Marc Gilbard 2009 Settlement Trust v. OD Developments and Projects Ltd. Meehan J found that the jurisdiction of an adjudicator to hear a claim was distinct from the adjudicator's decision on that claim. The CCA 2013 provides a party the right to refer a dispute to adjudication, and the adjudicator may consider the terms of the contract itself. In this instance, the adjudicator decided that the final certificate 'may be invalid'.
  3. The breach of natural justice case relied on Coulson J's judgment in another UK case, Pilon Ltd v. Breyer Group plc. However, the adjudicator had decided that the counterclaim was a separate action and could not be considered – a decision that relied on the UK case of Bresco Electrical Services Ltd (In Liquidation) v. Michael J. Lonsdale (Electrical) Ltd.4 While Meehan J did not endorse the Bresco case, he did find that the adjudicator had in fact considered the merits of the counterclaim in deciding that the cause of delay was Beneavin's, rather than Principal's.

Courts and procedure

i Fora

The Irish civil court system is tiered by monetary value, as follows:

  1. district court – €2,000 in small claims or claims of up to €15,000;
  2. circuit court – claims of between €15,000 and €75,000 (€60,000 in personal injury claims);
  3. High Court – claims above €75,000 with no upper limit.

There is no specialist construction component in the mould of the United Kingdom's Technology and Construction Court. However, the Irish High Court does operate a distinct division, the Commercial Court, which deals with all types of business dispute, including breach of contract, tort, property, trust and probate, IT disputes, judicial review, corporate mergers, global restructuring, insurance portfolio transfers, international swaps and derivatives or other investment disputes, and intellectual property disputes. This Court will soon also have a specialist sub-list called the Intellectual Property and Technology List, with specialist judges from the Commercial Court. There are also related specialist lists dealing with competition cases, arbitration matters, strategic infrastructure developments, intellectual property and tech, and insolvency.

Proceedings dealt with by the Commercial Court must have a commercial dimension and generally a value of no less than €1 million.

In response to the advent of construction adjudication, the High Court issued Practice Direction HC 105 in April 2021, as discussed above.

ii Jurisdiction

Construction contracts commonly include multi-tier dispute resolution clauses, yet there is scant authority regarding the enforceability of such clauses, except for matters addressing ambiguous clauses rather than the substance of the clauses' principles themselves. A well-drafted multi-tiered dispute resolution clause is therefore likely to be enforced in Ireland.

Irish courts are keen to encourage parties to explore alternative dispute resolution (ADR) options, particularly mediation and arbitration.

In John G Burns v. Grange Construction and Roofing Co Ltd,5 Ms Justice Laffoy observed that, 'it would be infinitely preferable if the dispute between the applicant and the respondent was resolved by some process of alternative dispute resolution, rather than by litigation'.

In Ireland, the Mediation Act 2017 is a statutory framework designed to 'facilitate the settlement of disputes by mediation, to specify the principles applicable to mediation [and] to specify arrangements for mediation as an alternative to the institution of civil proceedings'. Section 16 of the Act provides that a court may, on its own initiative or on the initiative of the parties, invite the parties to consider mediation as a means of resolving the dispute.

iii Procedure rules

It is common that construction disputes are contractually restricted from litigation under most Irish standard forms of contract, which typically provide for disputes to be referred to conciliation or arbitration (the CCA 2013 introduced a statutory right to adjudication). As mentioned above, the courts prefer ADR and will invoke the Mediation Act 2017 if deemed appropriate. However, if a party desires its day in court, the High Court, or particularly the Commercial Court, is the most likely venue, subject to the monetary thresholds described above.

iv Evidence

Discovery of documents occurs once the pleadings have closed. The rules governing this process are set out in Order 31 of the Rules of the Superior Courts. The parties issue written requests for voluntary discovery of specific categories of documents currently or previously in their possession, power or procurement that are relevant to the dispute. This request must comply with the following requirements:

  1. parties must stipulate the exact categories of documents that they require;
  2. requests must be confined to documents that are material to the issues in dispute and necessary for the fair disposal of the proceedings or for saving costs; and
  3. a reasonable amount of time must be provided for discovery to be made.

The Commercial Court rules provide that the parties serve factual and expert witnesses evidence in signed and dated statements, which is considered to be their evidence-in-chief at the hearing. Witnesses undertake examination-in-chief and cross-examination. Although cross-examination can be by affidavit evidence, a notice to cross-examine must be served in advance.

Statutory Instrument 254/2016 gives High Court judges power to regulate experts' duties and how expert evidence can be adduced. These rules also provide for 'hot tubbing', where experts are cross-examined concurrently. The court can also request that the experts meet privately (without the presence of any party or legal representative), with a view to providing a joint statement setting out points of agreement and, more importantly, areas of disagreement.

Alternative dispute resolution

i Statutory adjudication

Statutory adjudication is provided for under the CCA 2013. Although the Act is dated 2013, it did not provide for the advent of adjudication in Ireland until 25 July 2016, with the passing into legislation of certain statutory instruments. As discussed above, the adjudication process has been endorsed in the Irish courts and its presence in the construction disputes sector appears likely to grow.

ii Arbitration

The Arbitration Act 2010 (the 2010 Act) confers on parties the freedom to choose the governing law of their contract, the law of the arbitration agreement, the seat of the arbitration, the arbitral rules, the choice of arbitrators and the language of the contract and arbitration.

If the parties do not agree the number of arbitrators or the appointing body in their arbitration clause, the 2010 Act provides that the arbitral tribunal will consist of one arbitrator and the High Court has the power to appoint the arbitrator in the absence of an alternative agreement.

As is the norm internationally for three member tribunals, each party appoints one arbitrator and the two appointed arbitrators will appoint the third arbitrator. If a party fails to appoint an arbitrator within 30 days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment will be made by the High Court. The 2010 Act incorporates the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (the UNCITRAL Model Law) and so its provisions will apply to arbitration proceedings under the 2010 Act unless the parties agree to use another set of ad hoc or institutional rules. As Ireland is a signatory to the 1958 New York Convention, an arbitral award, irrespective of the country in which it was made (provided that country is a signatory of the New York Convention), must be recognised and enforced in Ireland unless one of the grounds set out in the Model Law exists.

In Achill Sheltered Housing Association CLG v. Dooniver Plant Hire Ltd,6 the High Court granted an order determining that the appointment of an arbitrator had been invalid, as the matters referred to arbitration had not previously been referred to conciliation as required under the contract.

In XPL Engineering v. K & J Townmore Construction Ltd,7 the High Court stayed proceedings and ordered that the matter be referred for arbitration. This is consistent with Article 8(1) of the UNCITRAL Model Law, whereby, in circumstances where there is a valid and binding arbitration agreement and one of the parties so requests, the court must refer the dispute between the parties to arbitration.

In K & J Townmore Construction Ltd v. Kildare and Wicklow Education and Training Board,8 the High Court found that the conditions of Article 8(1) were not met because a later agreement between the parties to refer the dispute for expert determination had rendered the conciliation and arbitration clauses in the original building contract void.

All arbitration in Ireland, both domestic and international, is governed by the 2010 Act.

iii Mediation

The Mediation Act 2017 encourages parties to settle their disputes at mediation, as opposed to in lengthy and costly litigation proceedings. Although the Mediation Act is not associated with the Arbitration Act 2010, it can bear on the arbitral process – up to the point when expert reports have been presented and a range of outcomes that could arise from the dispute resolution proceedings have been determined. Instigating mediation at this point, rather than continuing with the arbitration hearing (or hearings), can allow parties to resolve their disputes in a more time-efficient and cost-friendly manner.

iv Other ADR methods

In Ireland, conciliation is primarily used for the resolution of disputes in the construction industry and continues to play an important role in ADR. The local construction disputes sector is intimately familiar with the process, a familiarity garnered over many years of experience.

Conciliation is a voluntary process, entirely dependent on the parties agreeing to adopt it. It allows the parties to a dispute to determine a mutually agreeable solution without a requirement for a third party to determine and enforce a decision, such as in adjudication and arbitration. As it is a voluntary process (unless contractually mandated), the parties are able to withdraw at any time prior to an agreement being signed.

During the process, the conciliator is not able to pass information between the parties unless instructed to do so. The conciliator will only issue a recommendation on the settlement if the parties cannot reach an agreement. This advice will contain the conciliator's opinion on how the dispute should be resolved (although ordinarily without reasoning), which will not be limited in its scope, unless the parties' contracts specify otherwise (and they often do).

Most standard forms of Irish construction contract require the parties to engage in conciliation before referring a dispute to arbitration, litigation or another form of dispute resolution. Traditionally, the majority of construction disputes are settled at this stage of the process. However, with the advent of statutory adjudication, and if the Irish experience is to be similar to that in the United Kingdom, the use of conciliation may diminish in the years ahead while adjudication grows.

Construction contracts

i Public procurement

The substantive procedural rules that apply to public procurement in excess of EU thresholds are contained in four pieces of legislation:

  1. the Public Contracts Regulations,9 which implement Directive 2014/24/EU into Irish law;
  2. the Utilities Regulations,10 which implement Directive 2014/25/EU into Irish law;
  3. the Concessions Regulations,11 which implement Directive 2014/23/EU into Irish law; and
  4. the Defence Regulations12 (as amended), which implement Directive 2009/81/EC into Irish law.

The guidelines setting out the remedies for a breach of the substantive procurement rules are governed by several regulations (collectively, the Remedies Regulations).

The Capital Works Management Framework includes standard procurement documents, model forms and works contracts, as well as guidance notes, which apply to the conduct of public sector capital works projects in Ireland, with a number of different award procedures. Under the Public Contracts Regulations, open and restricted procedures may be relied on. The competitive procedure with negotiation and the competitive dialogue procedure are available only in the circumstances prescribed in the Public Contracts Regulations. The open procedure is the most common procedure for public sector bodies and the negotiated procedure is the most commonly used procedure in Ireland for utilities.

For above-threshold contracts, there are three principal sets of remedies regulations applicable to the public sector, the utilities sector and to the award of concessions contracts respectively:

  1. the Public Contracts Remedies Regulations;13
  2. the Utilities Remedies Regulations;14 and
  3. the Concessions Remedies Regulations.15

Contracting authorities are obliged to undertake a standstill period between giving notice of the contract award decision and the reasons for the decision to the unsuccessful bidders and entering into the contract. A minimum standstill of 14 days commences on the day after the notice is sent electronically.

For an application for remedies, the Remedies Regulations apply a strict 30 calendar days after the applicant was notified of the decision. A declaration that the contract is ineffective must be applied for within six months of the conclusion of the relevant contract. Although the High Court has the power to extend the limitation period, it takes a restrictive approach and is disinclined to use its power to grant applications for time extensions.

For ordinary judicial review proceedings, applications to set aside the decision must be made within three months of the date when grounds for the application first arose. The High Court can extend this period where there is a good reason; however, again the courts take a restrictive approach to granting time extensions.

While the normal limitation period for an application for a declaration of ineffectiveness is six months under the Remedies Regulations, it can be reduced to 30 calendar days under specific circumstances.

The High Court has the power to set aside a decision or declare a reviewable public contract ineffective and it can impose alternative penalties on a contracting authority or may make any necessary consequential order. It may also make interlocutory orders either to correct an infringement, prevent any further damage or suspend the operation of a decision or a contract, and may award damages as compensation for resulting loss. While it is possible for a review application to be heard within six months, the more likely time frame is 12 months and more, depending on complexities.

ii Contract interpretation

Irish case law stresses that contract interpretation involves broad principles rather than strict rules. When interpreting the meaning of a contract, the court's first step will be to consider the natural and ordinary meaning of words (textualism), but if the natural meaning remains unclear, a court may consider the commercial context (contextualism) to determine the meaning.

Irish case law suggests that a court in Ireland would not solely consider the words in isolation but would weigh the factual matrix and the circumstances in which a contract was negotiated and drafted, although care must be taken against placing too much emphasis on giving effect to commercial efficacy. As Robert Clark, an expert in contract law and the author of Contract Law in Ireland,16 has warned, it is not the job of the court to impose contractual terms that were not intended and 'there can be a fine line between interpreting a contract in a way that fixes a meaning that is commercially sensible and adjusting the meaning to improve the contract'.

Irish courts have an obligation to interpret the contract objectively, regardless of the subjective intention of the parties. The public policy behind this approach is readily understood, to avoid wholly different interpretations that could be given to two similar contracts where the parties to each contract had different subjective intentions. In explaining the objective approach that courts must take to contractual interpretation, Laffoy J put it succinctly in UPM v. BWG,17 as follows:

The Court's task is to ascertain the intention of the parties and the intention must be ascertained from the language they have used considered in light of the surrounding circumstances and the object of the contract . . . in attempting to ascertain the presumed intention of the parties the Court should adopt an objective, rather than a subjective approach, and should consider what would have been the intention of reasonable persons in the position of the parties.

Parol evidence may be admissible to explain the subject matter and construction or correct a mistake in commercial contracts but not to prove the validity of a contract.

Ambiguous contract clauses should be construed strictly against the party who provided the wording, in accordance with the contra proferentem rule, and provided that there is an element of ambiguity in respect of the relevant clause for the rule to apply.

The courts may imply terms into a contract. Implied terms are provided for by case law and certain statutes, such as the Sale of Goods Acts of 1893 and 1980.

In a recent Court of Appeal decision, the Court held that terms implied into a commercial contract must:

  1. be necessary to give business efficacy;
  2. be so obvious that it is implied; and
  3. give effect to the parties' intentions.

This followed on from an earlier decision in which the Court of Appeal found that an agreement was so imprecise and lacking in substance that it fell short of business efficacy.

In respect of oral modifications, the UK Supreme Court decision in Rock Advertising Limited v. MWB Business Exchange Centres Limited declined to give effect to these types of amendments.

In upholding the 'no oral modification' (NOM) clause, the Supreme Court noted that they provided similar benefits to an 'entire agreement' clause in a written contract. In particular, NOM clauses serve three important functions, namely:

  1. to reduce the risk of disputes arising as to whether the parties had intended to vary the terms of a contract and what the precise amendments were;
  2. to prevent written agreements from being eroded to the detriment of parties by informal means; and
  3. to provide increased certainty for internal governance as to what obligations the party was promising to satisfy.

Whether this decision will be followed in the Irish courts remains to be decided. Irish courts have previously interpreted contracts and thus determined entitlement on the basis of how the parties managed and operated the contract during the project. Where this occurs, a party may subsequently be barred from renouncing the common understanding of how the contract was to operate in circumstances in which the other party would be unfairly prejudiced. However, ensuring amendments to NOM clauses are provided in writing abates the likelihood of contrary interpretation by the parties and therefore reduces their commercial risk. This also becomes beneficial to funders as it prevents parties modifying approved contractual terms without funder agreement.

Common substantive issues and remedies

i Time bars as condition precedent to entitlement

The courts will generally implement conditions precedent if they are unambiguous, even if doing so appears punitive.18

Courts have shown a willingness to enforce exclusion clauses. However, where a condition precedent is considered ambiguous, the court is likely to take the narrower interpretation and consider that a true condition precedent does not exist. It is unlikely that the Irish courts are going to diverge from the international practice of giving effect to condition precedent provisions where the parties have agreed the specific requirements of time limits and notice requirements.

ii Right to payment for variations and varied scope of work

The Irish courts will generally treat a contractor's right of payment according to the mechanisms for varied work and associated valuation according to the terms of the contract.

iii Concurrent delay

Irish law has had no decision on the topic of concurrent delay since the UK case of Walter Lily v. Mackay.19 Irish law more generally follows Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd20 regarding concurrency of delay. If there are two concurrent causes of delay, one of which is an employer's risk event and the other not, then the contractor is entitled to an extension of time for the period of delay caused by the employer's risk event notwithstanding the concurrent effect of the other.

Private sector standard forms of construction contract do not usually include a clause dealing with concurrent delay, but parties will generally include additional clauses in their construction contracts to address this issue. However, in the public sector, public works contracts expressly provide that a contractor is not entitled to recover delay costs for the period of concurrent delay.

iv Suspension and termination

There is no implied common law right to suspend the works, except for the express provision for an employer to suspend works because of the contractor's non-performance. However, there may be entitlement to terminate because of the contractor's breach of contract or if a repudiatory breach of contract can be evidenced.

There is no implied term allowing suspension by the contractor for non-payment, but most standard forms provide for an express right of suspension for non-payment, provided prior notice is given. The CCA 2013 provides a contractor's statutory right of suspension of the works for non-payment by the employer on giving at least seven days' prior written notice.

v Penalties and liquidated damages

In a situation where the parties have agreed liquidated damages for delay, the employer is not entitled to claim any further damages in respect of the delay and will be entitled only to recover the delay damages even where these are higher (or lower) than the actual losses provided. The delay damages are a genuine pre-estimate of the employer's loss, assessed at the time the contract is entered into.

The High Court continued to apply the traditional test in relation to liquidated damages in Sheehan v. Breccia.21 Although it considered the test applied in the 2015 UK Supreme Court decision in Cavendish v. Makdessi, that test was not preferred. Instead, it considered it would be a matter for an appellate court to determine whether the 'Cavendish test' should be adopted in Ireland in future cases. The Supreme Court was not persuaded that any change to the test was necessary, nor that the route taken by the UK Supreme Court was a superior one. The Court of Appeal22 upheld the decision in Sheehan v. Breccia and no appellate court in Ireland has since overruled the traditional test.

vi Defects correction and liabilities

Irish standard construction contracts do not usually include an express clause relating to latent defects, or state the period for which a contractor shall be liable for latent defects. In the absence of express contractual provisions, the common law regulates these claims. A party may raise an action for defects either by suing in contract or tort (typically for negligence), or, alternatively and more commonly, by means of concurrent liability under both contract and negligence.

vii Bonds and guarantees

A guarantee is normally executed as a deed (as no consideration is passed) and must satisfy the same requirements as a contract. The Statute of Frauds Act (Ireland) 1695 renders an oral guarantor unenforceable.

The guarantor's liability will not be greater than that of the party to the underlying construction contract. However, it is commonplace for the guarantor to carry further obligations in the event of default in relation to performance or procuring an alternative contractor. In respect of on-demand bonds, the jurisdiction to make a call on a bond could be challenged where the applicable conditions triggering a call have not occurred, or where any procedural requirements have not been followed correctly.

viii Overall caps on liability

In addition to including a cap on liability, it is common to specify certain categories of loss that will not be recoverable by either party under the contract, such as:

  1. indirect loss;
  2. special loss, which may be considered the same as indirect or consequential loss;
  3. exemplary loss, which is awarded by a court by way of punishment in excess of a claimant's loss to punish the defendant for unreasonable behaviour and is only required in limited circumstances; and
  4. loss of profits – parties may only recover costs and expenses they actually incur as a result the other party's breach of contract.

Irish contract law prohibits a contracting party from limiting its liability in respect of:

  1. death or personal injury arising from that party's negligence;
  2. fraud committed by that party; and
  3. failure by that party to give good title to goods.

It is also common practice for the liability of each party to be unlimited in respect of wilful default.

Outlook

The future of construction disputes in Ireland will be largely determined by the industry's reaction to the judicial support bestowed on statutory adjudication. While, traditionally, most construction and engineering disputes have been dealt with through the tried and tested conciliation process – which in a relatively small and local marketplace is eminently sensible – if parties consider the comparative speed and efficiency of adjudication to provide a sufficiently attractive forum in which to resolve their disputes, it may offer a serious challenge to conciliation's dominance.

Footnotes

1 John Delaney is a director at Base Quantum Ireland Ltd.

2 Macob Civil Engineering Ltd v. Morrision Construction Ltd [1999] EWHC Tech 254; Bouygues (UK) Limited v. Dahl-Jensen (UK) Limited [2000] EWCA Civ 50.

3 Riches, J and Dancaster, C (2004) Construction Adjudication, 2nd Edition, Blackwell Publishing.

4 Bresco Electrical Services Ltd (In Liquidation) v. Michael J. Lonsdale (Electrical) Ltd [2020] UKSC.

5 John G Burns v. Grange Construction and Roofing Co Ltd [2013] IEHC 284.

6 Achill Sheltered Housing Association CLG v. Dooniver Plant Hire Ltd [2018] IEHC 6.

7 XPL Engineering v. K & J Townmore Construction Ltd [2019] IEHC 665.

8 K & J Townmore Construction Ltd v. Kildare and Wicklow Education and Training Board [2019] IEHC 666.

9 SI No. 284/2016 – the European Union (Award of Public Authority Contracts) Regulations 2016.

10 SI No. 286/2016 – the European Union (Award of Contracts by Utility Undertakings) Regulations 2016.

11 SI No. 203/2017 – the European Union (Award of Concession Contracts) Regulations 2017.

12 SI No. 62/2012 – the European Union (Award of Contracts Relating to Defence and Security) Regulations 2012.

13 SI No. 130/2010 – the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 as amended.

14 SI No. 131/2010 – the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 as amended.

15 SI No. 326 of 2017 – the European Union (Award of Concession Contracts) (Review Procedures) Regulations.

16 Clark, R (2016) Contract Law in Ireland, 8th Edition, Round Hall.

17 High Court, Unreported, 11 June 1999 at p. 24.

18 As in CMA Assets Pty Ltd v. John Holland Pty Ltd [No. 6] [2015] WASC 217.

19 Walter Lily v. Mackay [2012] 1773 (TCC).

20 Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [1999] 70 Con LR 32.

21 Sheehan v. Breccia [2016] IEHC 120.

22 [2018] IECA 273.

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