Tenderbids are (not) go!

The recent decision of Mr Justice Simons delivered on 12 January 2026 in Tenderbids v Electrical Waste Management Ltd [2026] IEHC 5 has clarified that “smash and grab” adjudications are not permitted under the Construction Contracts Act 2013 (“CCA 2013”).

This Q&A article looks at some practical considerations for those in the construction industry in light of the decision.

1. Why is this case in the news?

The validity of smash and grab adjudications under CCA 2013 had been debated since the Act came into force in 2016. In Tenderbids the High Court settled the issue by:

• refusing to uphold the adjudicator’s decision under CCA 2013 which had been awarded in favour of the Applicant on a smash and grab basis; and
• confirming that smash and grab adjudications are not provided for under CCA 2013.

2. What is a smash and grab adjudication?

A “smash and grab” adjudication occurs when:

• a party seeking payment under a construction contract issues a Payment Claim Notice and the paying / responding party fails to reply within the relevant time period; and
• an adjudication is commenced, based on the argument that the default in reply is sufficient to entitle the party seeking payment to the full amount claimed.

As a result, a “true value” adjudication does not take place and the referring party’s entitlement to payment arises automatically notwithstanding the merits of the underlying claim.

3. Why is the Tenderbids decision so important?

Smash and grab adjudications are well-established in the UK.

Opinion has been divided in Ireland as to whether the practice was provided for under CCA 2013. The two competing schools of thought on the matter were:

• that smash and grab adjudications gave effect to the purpose of the legislation which was to provide a pay now, argue later system of dispute resolution; and 
• that CCA 2013 did not intend to provide for smash and grab adjudications and were contrary to the principles of fair procedures.

The decision in Tenderbids clarifies that smash and grab adjudications are not provided for under CCA 2013 and that adjudications in Ireland will have to be based on the underlying merits of the claim.

The court was clear that court intervention at the enforcement stage of an adjudication award will only occur in exceptional circumstances.

4. It has been nearly 10 years since the commencement of CCA 2013, why are the courts only clarifying this issue now?

As in any other area, a suitable set of facts and issues must be presented before a court in order for a point of law to be adjudicated. 

Although the topic of smash and grab adjudications in Ireland has been considered and debated at length in the industry, an appropriate opportunity for judicial clarification did not arise until Tenderbids. Indeed, the court in Tenderbids noted that the prevailing need for clarity on the issue of whether smash and grab adjudications were permitted constituted exceptional circumstances on the facts to allow the Respondent to raise this point as a new issue at the enforcement stage notwithstanding this issue was not raised at the adjudication between the parties. 

5. Will this affect all adjudications?

In short, yes – unless there is legislative amendment to CCA 2013 and / or Tenderbids is overturned, smash and grab adjudications or attempted smash and grab adjudications will not form part of the construction dispute resolution landscape in Ireland.

6. Can Payment Claim Notices just be ignored now?

No - while it appears that this decision is the death knell for smash and grab adjudications in Ireland, it does not provide carte blanche for paying / respondent parties to ignore Payment Claim Notices and / or avoid participating in adjudications.

While Tenderbids could be said to have diluted the impact of CCA 2013 to an extent, parties still cannot contract out of adjudication. Tenderbids will reaffirm the use of a merits based model where referring parties will have to substantiate their claims notwithstanding the failure of a paying / respondent party to reply to the Payment Claim Notice and / or participate in the adjudication.

Similarly, adjudicators will have to show that they have engaged with the referral presented by a referring party, give reasons for their decision and note that their decision has been formulated on the submissions presented and not on the failure of a party to reply to a Payment Claim Notice.

7. Does this mean that the UK is no longer a source of guidance?

No - the body of case law on payment claim disputes in the UK is still far more substantial than that in Ireland and remains an instructive source of information for construction industry practitioners and lawyers alike.

Nonetheless, as demonstrated by the Tenderbids decision, it is important to exercise caution when relying on UK decisions, as the UK and Irish systems, while similar, are not identical and as CCA 2013 enters its teenage years and continues to establish its own identity, the two systems may move further apart.