Irish “Smash and Grab” Adjudication: Key Rulings Reinforce Procedure

For contractors who have become accustomed to the "smash and grab" adjudication tactics available under UK law, where a failure to respond to a payment claim can result in an automatic win, the Irish courts have delivered a stark message: that approach will not work here. These rulings are essential reading for anyone involved in Irish construction disputes, as they fundamentally clarify the rules of engagement when payment disagreements arise.

Two major rulings in the Tenderbids Ltd v Electrical Waste Management Ltd [2025] IEHC 139; [2026] IEHC 5 case have given clear new rules for how payment disputes must be handled in Irish construction. The judgments from Mr. Justice Garrett Simons in March 2025 and January 2026 answer important questions for contractors, subcontractors, and employers.

What Happened in the Case?

A contractor, Tenderbids, was hired to build a recycling facility. They sent a payment claim to the employer, EWM, who did not reply to it. This led to two tries at getting an adjudicator’s decision:

1. The first try failed on a technicality: Tenderbids started an adjudication by sending their notice by email. But the contract said this notice must be sent by registered post. Even though the adjudicator went ahead and decided in Tenderbids’s favour, the High Court later said the whole process was invalid because they used the wrong delivery method. This showed that even small mistakes in following the rules can ruin an adjudication.
2. The second try – the main question: Tenderbids started a new adjudication, this time sending the notice correctly. They argued that because EWM failed to reply to their payment claim, EWM should have to pay the full amount automatically. This is sometimes called a "smash and grab" adjudication. The adjudicator agreed with this idea and ordered EWM to pay.

However, EWM refused to pay, and the case went back to the High Court. The decision the Court now faced was: does Irish law allow this type of "automatic win" if someone doesn’t reply to a payment claim?

The Court’s Decision: A Clear “No” to Automatic Wins

Justice Simons looked carefully at the law, the Construction Contracts Act 2013, and gave a clear answer: No, there is no “smash and grab” in Ireland. Here’s the main reasoning:

• What the law says: The law says if an employer disagrees with a payment claim, they must send a detailed reply within 21 days. If their reply says they will pay a lower amount, the law clearly states they "shall pay" that lower amount by the due date.
• What the law doesn’t say: The law is silent on what happens if the employer sends no reply at all. It does not say they then "shall pay" the full amount claimed.
• The contractor’s argument: Tenderbids argued that the law should be read to include this automatic payment rule. They said it’s the only way to make sure people take the payment claim process seriously.
• The Court’s rejection: The judge refused to add a rule that isn’t in the text. The judge said there are many possible consequences for not replying (like letting the other side start an adjudication faster), and it’s not for judges to pick one and write it into law. That is a job for the parliament (the Oireachtas). He also noted that when the law was being made, politicians discussed adding an automatic payment rule and chose not to include it.

Implications for the Construction Industry

These rulings set out new, clear ground rules:

1. “Smash and grab” is not allowed in Ireland: The so called “smash and grab” adjudication, which is used in the UK, does not work under Irish law. A party cannot win an adjudication just because the other side didn’t file paperwork on time. Disputes will be decided on the merits. A failure to issue a response to a payment claim, does not entitle a party to a default payment, which is different from the payment rules in the UK.
2. Adjudication is about the real dispute. The purpose of Irish adjudication is to get a quick, fair decision on the real payment issue. It is not a game of catching the other side on a technical paperwork error.
3. It is essential to follow the rules. If you do not adhere to the specific terms for starting an adjudication, the entire process can be declared invalid from the start. If necessary, seek legal advice before you begin.
4. Parties can make their own rules. The judge pointed out that while the law doesn’t create an automatic payment, contracts can. Companies can agree in their contracts that if one side doesn’t reply to a payment claim, they lose the right to dispute it. Therefore, after this ruling, we may see more contractors asking for this kind of term in their contracts.

Conclusion

These rulings apply to construction contracts governed by the laws of the Republic of Ireland. If your contract states that Irish law applies, then the principles from this case are directly relevant to how your payment disputes will be handled. Unlike “smash and grab” in the UK that deals with technicalities, this ruling clarifies that the Irish adjudication is designed to deal with payment disputes on the merits rather than technicalities.

If you’re a contractor or subcontractor, this means your payment claims must be strong and well-supported from the beginning. You cannot rely on the other side’s mistake to win.

For employers and main contractors, it means you must engage with payment claims properly. While you won’t lose automatically for missing a deadline, ignoring a claim is risky as it will likely lead to a fast adjudication where you’ll have to defend yourself on the actual details of the dispute, possibly from a weak position if you haven’t done your homework.

Need Expert Guidance on Construction Payment Disputes?

These landmark rulings in response to “smash and grab” adjudication have reshaped the landscape in Ireland. Whether you're drafting payment claims, responding to disputes, or negotiating construction contract terms to protect your interests, getting the details right from the start is critical. For advice, contact us for a free consultation with Henry Hathaway. Henry is dual qualified and practicing in Ireland as well as the UK.

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