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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Tenderbids Ltd trading as Bastion v Electrical Waste Management Ltd (Approved) [2025] IEHC 339 (18 June 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC339.html
Cite as: [2025] IEHC 339

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APPROVED                                                             [2025] IEHC 339

 

 

 

 

The High Court

 

2024 566 MCA

 

 

 

IN THE MATTER OF THE CONSTRUCTION CONTRACTS ACT 2013

 

 

BETWEEN

 

 

TENDERBIDS LTD

TRADING AS BASTION

 

APPLICANT

 

 

AND

 

 

ELECTRICAL WASTE MANAGEMENT LTD

 

RESPONDENT

 

 

 

 

 

JUDGMENT of Mr. Justice Garrett Simons delivered on 18 June 2025

 

 

Introduction

1.             The principal judgment in these proceedings was delivered on 13 March 2025: Tenderbids Ltd v. Electrical Waste Management Ltd [2025] IEHC 139.  This supplemental judgment addresses the incidence of legal costs.

 

Discussion

2.             The "starting point" under section 169 of the Legal Services Regulation Act 2015 is that a party who has been entirely successful in proceedings is entitled to recover its costs as against the unsuccessful party.  The court may order otherwise having regard to the particular nature and circumstances of the case and the conduct of the proceedings by the parties.  See, generally, Word Perfect Translation Services Ltd v. Minister for Public Expenditure and Reform [2023] IECA 189.

3.             For the reasons explained in the principal judgment, the respondent has been entirely successful in resisting the proceedings.  More specifically, the application to enforce an adjudicator's award has been refused in circumstances where this court held that the adjudication process was a nullity by reason of the fact that the statutory provisions in relation to service were not complied with.

4.             It follows, therefore, that the default position is that the respondent would be entitled to recover its costs of the proceedings.  The court, of course, enjoys discretion to make a different costs order.  The applicant invokes this discretion and invites the court to make an order allowing it to recover its costs up to the date upon which the respondent first disclosed its intended defence to the proceedings.

5.             To put the applicant's argument in context, it is necessary to rehearse briefly the procedural history.  The proceedings seek to enforce a (purported) adjudicator's award.  Provision is made for such enforcement under section 6 of the Construction Contracts Act 2013.  Relevantly, the procedure is a summary procedure, initiated by way of originating notice of motion.

6.             The court's discretion to refuse to make an enforcement order in circumstances where the formal proofs are made out is limited: see, generally, Aakon Construction Services Ltd v. Pure Fitout Associated Ltd [2021] IEHC 562.  In consequence, an application to enforce an adjudicator's award does not ordinarily involve any factual dispute and is usually capable of being resolved on affidavit evidence only.

7.             The present proceedings were first listed before this court on 28 November 2024.  On that date, there was no attendance on behalf of the respondent.  This court listed the proceedings for full hearing on 19 December 2024.

8.             On the scheduled hearing date, the respondent entered an appearance to the proceedings through a firm of solicitors, and counsel and solicitor attended before this court.  Counsel for the respondent furnished his opposite number, and the court, with a speaking note setting out the intended defence to the proceedings.  The intended defence was to the effect that the adjudication process was a nullity by reason of the fact that the statutory provisions in relation to service were not complied with ("the service point" or "the jurisdictional objection").  Relevantly, this was the first time that the respondent's side had disclosed its intended defence to the proceedings to the applicant's side. 

9.             For logistical reasons, entirely unconnected to the parties to these proceedings, the hearing could not go ahead on 19 December 2024.  Instead, the proceedings were adjourned for hearing to the following day (20 December 2024).

10.         The respondent's side made an offer, through counsel, to compromise the proceedings with each side bearing its own costs.  This offer was not accepted by the applicant's side and was subsequently withdrawn by the respondent. 

11.         The proceedings were part-heard on 20 December 2024.  The proceedings were then adjourned to allow the parties an opportunity to file written legal submissions on the service point.  A timetable for the exchange of submissions was fixed.  The hearing resumed on 20 February 2025. 

12.         This court delivered a reserved judgment on 13 March 2025: Tenderbids Ltd v. Electrical Waste Management Ltd [2025] IEHC 139.  The following provisional view on costs was indicated in the judgment:

"As to legal costs, my provisional view is that the respondent is entitled to recover the costs of these proceedings as against the applicant.  It is correct to say that the respondent only raised the jurisdictional objection at the eleventh hour.  Had the applicant withdrawn its proceedings at that point, it might well have had good grounds for resisting a costs order.  In the event, however, the applicant elected to pursue the proceedings in the teeth of the jurisdictional objection and has been unsuccessful. 

 

If either party wishes to contend for a different form of costs order, that party should notify the registrar within fourteen days and arrange to have the matter relisted.  If no such notification is received, a costs order will be drawn up as per the provisional view indicated above."

 

13.         The proceedings were listed, at the instance of the applicant, on 2 April 2025.  It was indicated on behalf of the applicant that it wished to contend for a different form of costs order.  The applicant sought leave to file written legal submissions on costs and to make oral submissions thereafter.  This court acceded to the request but observed that the preparation of written legal submissions would, in itself, result in yet further costs being incurred and that one side or the other would have to pay those costs ultimately.

14.         The costs hearing took place on 3 June 2025.  In brief, counsel on behalf of the applicant invited this court to have regard to the litigation conduct of the respondent.  It was said that the respondent failed to engage with the proceedings initially and only disclosed, for the first time, its intended defence to the proceedings on 19 December 2024.  It was further said that the jurisdictional objection (based on the service of the adjudication process) should have been raised earlier.  It is not entirely clear whether the implication here is that the jurisdictional objection should have been raised in the context of the adjudication process itself, or whether, alternatively, it should have been raised by way of a preliminary issue in the context of the present proceedings.  For the reasons which follow, neither proposition is correct. 

15.         As to the first, this court has already rejected, in the principal judgment, an argument that the respondent should have engaged with the adjudication process to the extent of raising an objection that the adjudication process was invalid.  This court has held that the entire adjudication process was a nullity in consequence of the failure of the applicant to deliver a notice of intention to refer in the manner prescribed.  The respondent was not obliged to engage with a nullity. 

16.         As to the second, if and insofar as there is an implication that the respondent was obliged to raise the jurisdictional issue as a preliminary issue in the context of these proceedings, this would be contrary to the objective of expedition which underlies the enforcement mechanism under the Construction Contracts Act 2013.  As is apparent from section 6 of the Act and the complementary provisions of Order 56B of the Rules of the Superior Courts, the default position is that enforcement proceedings are to be heard and determined on a summary basis on affidavit evidence.  It would be inconsistent with the objective of expedition to separate out issues and to have a preliminary hearing. 

17.         In practice, applications in the Construction Contracts List are generally heard within a few weeks of the institution of the proceedings and rarely require more than one or two hours of hearing time.  There would be no practical benefit in modularising what are already short hearings.  It is preferable to have a single, omnibus hearing.  There was no requirement, therefore, for the respondent to have sought to argue the jurisdictional objection / service point as a preliminary issue.

18.         The applicant has sought to rely on the judgment in Word Perfect Translation Services Ltd v. Minister for Public Expenditure and Reform [2023] IECA 189 in support of the proposition that the LSRA 2015 imposed "a requirement to conduct litigation in the most cost-effective manner possible". 

19.         With respect, the judgment does not go that far.  Whereas the Court of Appeal did observe (at paragraph 92) that there may well be cases where the failure to bring some type of preliminary application to dismiss a case will be considered unreasonable, it rejected any wider proposition.  See, in particular, the following passages from paragraph 94 of the judgment:

"•           The 2015 Act did not change that position so as to impose a requirement on an entirely successful party seeking its costs to demonstrate that it conducted the litigation in the most cost-effective manner possible.  Such a radical change to the law is not to be found within the provisions of the 2015 Act.  Instead, the Act continues the position that the parties must conduct litigation fairly, reasonably and proportionately to the issues at stake.

 

•           A failure to move by way of preliminary application on a point that is ultimately successful is a factor that may be taken into account in assessing whether there ought to be a modified costs order.  The test to be applied, however, is not one that amounts to the imposition of a rule on a party to conduct the proceedings in the most cost-effective manner possible.  The test is whether the approach taken in respect of the preliminary issue was objectively reasonable in all the circumstances of the case."

 

20.         Applying these principles to the present proceedings, it cannot be said that the respondent acted unfairly, unreasonably or disproportionately in failing to apply to have the service point dealt with as a preliminary issue.  As explained earlier, a single hearing is preferable in enforcement applications under the Construction Contracts Act 2013.  Moreover, on the facts of the present case, the service point was the exclusive ground upon which the respondent sought to defend the proceedings.  This is not a case where the failure to pursue a knock-out point as a preliminary issue resulted in the parties having to incur the otherwise avoidable costs of a full trial wherein multiple issues had to be litigated.  There was only ever one live issue in the present proceedings.

21.         In assessing the respondent's litigation conduct, some weight can be attached to the respondent's offer of settlement made on 19 December 2024.  It will be recalled that the respondent had offered to go back-to-back on costs if the applicant withdrew its proceedings at that point.  This reasonable offer was not accepted by the applicant.

22.         For completeness, it is necessary to say something about the case law relied upon in support of the costs application.  Counsel on behalf of the applicant has cited an impressive body of case law addressing various situations in which the litigation conduct of a party had been taken into account in formulating an appropriate costs order. 

23.         It has to be said, however, that, in many instances, the party against whom the costs order had been made had been unsuccessful in the proceedings.  Moreover, in those cases where a successful party had been denied some or all of their costs, the litigation misconduct had been of a higher order of magnitude than that alleged in the present case.  The cases cited include the following scenarios: a party had deliberately and calculatedly destroyed the documents the subject-matter of the proceedings for the purpose of depriving the other side of an effective remedy (Mahon v. Keena [2009] IESC 78, [2010] 1 IR 336); a party had advanced a claim which the court characterised as "pure fantasy" and had acted unreasonably in response to efforts by a District Court judge to facilitate a settlement (Flannery v. Dean [1995] 2 ILRM 393); and a consultant obstetrician had, during his evidence at trial, resiled from the content of a crucial letter which he had sent to the plaintiff's general medical practitioner (Hanrahan v. Waterstone [2021] IEHC 274).  The litigation misconduct alleged against the respondent in the present proceedings entails nothing close to the level of culpability discussed in the cited case law.

24.         Of course, it would have been preferable had the respondent flagged the service point prior to the listing on 19 December 2024.  The delay in this regard had the practical consequence that the applicant had not been put on notice of the ground, upon which the respondent intended to defend the proceedings, until the day of the scheduled hearing.  Had the applicant's reaction to this development been to withdraw its proceedings, then this court would have made no costs order against the applicant.  This is because the applicant could reasonably have said that it would not have pursued the proceedings had it known earlier that the respondent intended to rely on the service point as nullifying the adjudication process.  The respondent could have indicated its stance in reply to the applicant's pre-litigation letter.

25.         As matters transpired, however, the applicant did not withdraw its proceedings.  Rather, the applicant chose, instead, to pursue the proceedings to a substantive hearing in full knowledge that the respondent would be relying on the service point / jurisdictional objection.  The applicant chose, as was its right, to contest the respondent's contentions on the service point.  The point was ultimately resolved in favour of the respondent.

26.         Having regard to this chronology, it cannot sensibly be said that the applicant suffered any material prejudice by reason of the respondent's delay in disclosing its intended defence.  This court afforded the applicant ample time to consider the intended defence and to make an informed decision as to whether to pursue its proceedings regardless.  It will be recalled that the hearing on 20 December 2024 had been adjourned until 20 February 2025 to allow the parties to prepare written legal submissions.  The applicant, having carefully considered the law, could have withdrawn its proceedings prior to that date.  It chose not to do so. 

27.         Having been entirely successful in the proceedings, the respondent is entitled to recover its costs as against the applicant, subject to the following modification.

28.         The only possible inconvenience which might have been caused to the applicant by the respondent's delay is that the hearing on 20 December 2024 had to be adjourned to allow for the exchange of written legal submissions on the service point.  This can be addressed by stipulating, as part of the order, that the costs are to be measured on the basis of a one-hour hearing on 20 February 2025.  The respondent is not entitled to recover any costs in relation to the listings on either 19 December or 20 December 2024.

 

 

Conclusion and proposed form of order

29.         The following order will be made in respect of the costs incurred up to the date of the delivery of the principal judgment.  The respondent is entitled to recover, as against the applicant, its costs of and incidental to the proceedings.  The costs are to include the costs of the written legal submissions filed on 20 February 2025.  The costs are to be "adjudicated" on the basis of a one-hour hearing on 20 February 2025.  This is the benchmark against which counsel's brief fee and the solicitor's general instructions fee is to be measured.  The respondent is not entitled to recover any costs in relation to the listings on either 19 December or 20 December 2024.  The costs order is made pursuant to section 169 of the Legal Services Regulation Act 2015.  In default of agreement between the parties, the quantum of the costs is to be adjudicated pursuant to Part 10 of the Act.

30.         As to the costs of the costs application, this court's provisional view is that the respondent is entitled to recover these additional costs as against the applicant.  This is because the applicant has been unsuccessful in its attempt to recover, as against the respondent, the costs which it had incurred up to 20 December 2024.  This dispute in relation to costs resulted in the respondent having to incur the additional costs of preparing written legal submissions and of the hearing on 3 June 2025.  If the applicant wishes to contend for a different order in relation to the costs of the costs application than that proposed, it should notify the registrar within 14 days of the date of this judgment and arrange to have the matter relisted before me.

 

 

Appearances

Catherine Needham for the applicant instructed by Byrne Wallace Shields LLP

David O'Brien for the respondent instructed by AMOSS LLP

 

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