Construction Law 2021 Comparisons

Last Updated June 11, 2021

Contributed By Dentons Ireland

Law and Practice

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Dentons Ireland provides a full range of legal services to national and international clients, including corporates, financial institutions, private equity houses, as well as Irish SMEs. Advising clients from all over the world doing business in Ireland, the firm's Dublin-based lawyers are highly regarded and a best-in-class team, with a proven track record of excellence. In addition to its in-depth knowledge of the Irish market, Dentons Ireland is able to draw on the international practice capabilities of 12,000-plus lawyers in 80 countries and the global best practice and innovation of the world's largest law firm, to provide tailored advice on both domestic and cross-border transactions, projects and disputes.

Construction projects in Ireland are impacted by a wide range of statutory requirements depending on the nature of the project and the stakeholders involved. There are, however, a number of sector-specific requirements which impact the majority of construction projects.

  • The Building Control Acts – the Building Control Acts 1990 and 2007 (and subordinate legislation) provide (i) the standards to which building works must comply (set out in the Building Regulations 1997–2019) and (ii) the method of demonstrating compliance with such standards through the provision of certain certificates of compliance and supporting documentation (set out in the Building Control Regulations 1997–2020).
  • The Construction Contracts Act 2013 – the Construction Contracts Act 2013 sets out minimum payment terms for construction contracts and provides for a regime of statutory adjudication.
  • Pursuant to the Industrial Relations (Amendment) Act 2015, various Sectoral Employment Orders (SEOs) have been made setting out rates of pay and related requirements in respect of certain categories of construction worker:
    1. SI.59/2018 Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018;
    2. SI.455/2017 and SI.234/2019 Sectoral Employer Order (Construction Sector) 2017/2019; and
    3. SI.251/2019 Sectoral Employment Order (Electrical Contracting Sector) – the "Electrical SEO".

At the time of writing, the Supreme Court has just declared the Electrical SEO to be unconstitutional (National Electrical Contractors of Ireland v The Labour Court & Ors [2019] No 280 JR) and has remitted the matter to the Labour Court.

  • Safety Health and Welfare at Work Act 2005 and Safety Health and Welfare at Work (Construction) Regulations 2013 set out certain health and safety requirements for construction works.

This legislation can be found at: http://www.irishstatutebook.ie/. It should also be noted that Ireland is a common law jurisdiction so common law principles and case law will generally apply to Irish construction projects.

There are a number of standard form contracts in use in the Irish market.

  • The Royal Institute of Architects of Ireland (RIAI) standard forms – the RIAI standard forms are the most common form of contract in use in Ireland. The RIAI can be amended quite heavily, although the majority of amendments are market standard.
  • The Institution of Engineers of Ireland, Contract for Works of Civil Engineering Construction (IEI) – the IEI form is the Irish form of engineering contract and is, again, often subject to heavy amendment.
  • The International Federation of Consulting Engineers (FIDIC) – the FIDIC forms of contract are also widely used in Ireland, typically for larger scale infrastructure projects.
  • Other forms of contract commonly used in Ireland are the UK Joint Contracts Tribunal forms (JCT) and the New Engineering Contract (NEC) forms.
  • A new form of contract, the Private Sector Contract for Building and Engineering Works Designed by the Employer (PSC) was announced on 15 September 2020. It remains to be seen whether this new contract will become widely utilised in the market.
  • For public sector contracts, a suite of standard form construction contracts is available at https://constructionprocurement.gov.ie/.

While standard form design appointments exist, they are not as widely used in the private sector, where bespoke forms are more common. Such standard form design appointments include:

  • the RIAI Agreement between Client and Architect for the Provision of Architectural Services; and
  • the ACEI SE 9101 (Conditions of Engagement: for the appointment of Consulting Engineers for Structural Engineering Work where the Engineer is not the Lead Consultant), the ACEI SE 9202 (Conditions of Engagement: for the Appointment of Consulting Engineers for Structural Engineering Work where the Engineer is the Lead Consultant), the ACEI ME 2000 (Conditions of Engagement: for the Appointment of Consulting Engineers for Engineering Services and Associated Equipment for Buildings and other Structures), and the ACEI RA 9101 (Conditions of Engagement: for the Appointment of Consulting Engineers for Reports and Advisory Works).

For public sector works, the standard form consultancy appointments are available at https://constructionprocurement.gov.ie/.

Site Closures

The COVID-19 pandemic has had a significant impact on the Irish construction market with two periods of government-mandated site closures for all but limited "essential" construction works: the first period from 28 March 2020 to 18 May 2020 and the second period from 8 January 2021 to 4 May 2021 (although there has been some earlier reopening of certain elements, such as home building).

The second period of closures has made it difficult to predict the final impact of COVID-19. There is no doubt that claims in relation to COVID-19 will continue to filter through projects over the coming months. The extent of these claims will largely depend on the construction commencement date and the nature of the project – projects which have straddled both closures will be most impacted. In addition to claims covering the actual period of closure, delays caused by compliance with new working practices must also be factored in. As matters become more contentious, there is a concern that contractor insolvency will increase.

Travel Restrictions

The construction sector has also been affected by travel restrictions introduced to combat COVID-19. These restrictions include mandatory quarantine requirements, which will impact on the ability to deploy foreign labour on Irish construction sites and the return of workers who left Ireland during the period of site closures.

Public Works Contracts

For Public Works Contracts, the Office of Government Procurement has issued guidance on how COVID-19-related claims should be dealt with.

No particular legal form is required to act as an employer and employers can vary immensely depending on the nature of the works (eg, the identity of an employer could range from an entity carrying out a one-off construction project to a seasoned property developer). It is common to see developers make use of special purpose vehicles (SPVs) as the employer entity to ring-fence projects and manage risk. 

Regardless of the type of entity or the sophistication of an employer, the core obligations of the employer in any construction project will be to pay for the works in accordance with the terms of the building contract and to provide (i) access to the site for the purposes of carrying out the works and (ii) such information as the employer is required to provide in timely manner and in accordance with the building contract.

There is no particular legal form required for contractors in Ireland. A contractor may operate as a registered company, a partnership or as a sole trader. The Construction Industry Federation operates an online register (CIRI) of competent builders, contractors, specialist subcontractors and tradespeople which is available at https://www.ciri.ie/. CIRI is supported by the Irish government but registration is not yet mandatory at the time of writing.

The contractor will be appointed by the employer and will appoint subcontractors. The contractor may also execute a collateral warranty in favour of the employer's funder (or other third parties such as tenants), thus establishing privity of contract with such third parties (see 2.4 The Financiers).

While obligations will vary depending on the nature of the works and the individual contract, the general obligations of a contractor will be (i) to carry out and complete the works using all proper skill and care in a good and workmanlike manner and (ii) to ensure that any materials supplied by the contractor are also reasonably fit for the purpose for which they are used and of good quality. 

The contractor's responsibility for the design of the works (and whether or not it will appoint the design team) will be dependent on the procurement model utilised for the particular project. Where the contractor is responsible for the design of the works, it will have a duty to take reasonable skill and care.

As with contractors, subcontractors may operate as a registered company, a partnership or as a sole trader and may opt to register with CIRI, although this is not mandatory.

Typically, subcontractors are appointed directly by the contractor and the contractor will be solely responsible for the activities of the subcontractor (see 3.4 Construction). A contractor will usually seek to go "back to back" on its contractual arrangements with the subcontractor, such that the subcontractor's obligations will mirror all the obligations the contractor has to the employer in respect of the particular subcontractor package. The subcontractor may also be required to execute a collateral warranty in favour of the employer's funder (or other third parties), thus establishing privity of contract with such funder (see 2.4 The Financiers).

Irish construction projects are financed by a wide variety of entities including institutional banks, investment funds, alternative lenders and private equity firms.

As mentioned in 2.1 The Employer, the funders of a construction project will tend to have a relationship with the employer as borrower (or as one of a number of borrowers). Where the employer is not the borrower, the borrower will typically put a development agreement in place with the employer and the employer will provide a collateral warranty to the funder. The collateral warranty creates privity of contract between the funder and the employer and will essentially provide that the employer owes the same duties to the funder as it owes to the borrower under the development agreement. It is also usual for funders to enter into collateral warranties with the contractor, key subcontractors or designers. The collateral warranty (which can also take the form of a Duty of Care Deed or a Direct Agreement) will usually also provide rights of step-in to the funders.

The funding agreement will also typically provide for the funder to take a security assignment over the "development documents" which will usually include the building contract and design appointments, etc.

In addition, the building contract will usually provide rights of access and right to information for the funder's monitor. The extent of information and access required will depend on the terms of the funding agreement between the funder and the borrower/employer.

The scope of the works will be set out in a number of documents which will be appended to the building contract and form part of the "contract documents". These will include some or all of the following:

  • scope of works;
  • drawings;
  • specifications;
  • preliminaries;
  • bill of quantities/schedule of rates; and
  • other relevant documentation.

The building contract will typically provide for an order of precedence in circumstances where there is any ambiguity between the contract documents.

Whether the programme (setting out the sequence and duration of the works which must be carried out from commencement to completion) is a contract document will depend on the contract itself. Under the Irish RIAI form of contract, the programme is not a contract document (see 5.1 Planning).

Variations (whether requested by the employer or the contractor) are typically priced in accordance with the rates set out in the bill of quantities (BOQ) for the works or where there is no BOQ, in accordance with the schedule of rates submitted by the contractor.

If the variation is not of a similar character or executed under similar conditions as the work to which such rates apply, then the following commonly applies (although it will depend on the contract):

  • the rates set out in the BOQ/schedule of rates may still be utilised as far as reasonable; otherwise
  • a fair valuation will be carried out by the contract administrator based on rates for similar work in the locality current at the time the variations were executed.

If neither of the above methods is suitable for valuing the variation, the contract administrator will value it in accordance with "daywork" rates, which are based on the actual cost of labour and materials plus an allowance for overheads, etc.

Responsibility for design depends on the method of project procurement. In Ireland, a number of methods of project procurement are utilised but the main methods are (i) traditional "build only" and (ii) design and build.

Build-Only Model

In the traditional model, the employer separately engages the design consultants to prepare the design. There are separate lines of responsibility for design and construction and the employer has a direct but separate contractual relationship with the design team and the contractor.

It is worth noting that even where the traditional model is utilised, it is common for the contractor to retain design responsibility for specialist subcontractors carrying out design. The employer is also likely to obtain a collateral warranty from such specialist subcontractor but this is separate and in addition to the contractor's primary responsibility for such subcontractors.

Design-and-Build Model

Under a design-and-build model, the contractor takes on responsibility for both the design and construction of the works. Where design consultants are appointed by the employer before the contractor is selected, the employer will transfer (or novate) such appointments to the main contractor with effect that sole responsibility for design (as well as workmanship) rests with the contractor.

The contractor is responsible for the construction of the works including works carried out by subcontractors. Traditionally, where the employer nominated a particular subcontractor, the employer would retain responsibility for the design carried out by such subcontractor. However, there has been a move away from the "nominated" subcontractor structure in the past decade or so and it is typical for all subcontractors to be treated as domestic to the contractor. Notwithstanding the contractor's responsibility for subcontractors, the employer may also seek a collateral warranty from particular key subcontractors (particularly subcontractors carrying out design) as an extra layer of protection.

The contractor will take possession (on an exclusive or non-exclusive basis depending on the contract) on the date set out in the building contract. Save for any carve-outs in respect of independent contractors, etc, the contractor will be responsible for the works and the site (including site security and access routes) from the date of commencement until the date of completion.

Depending on the nature of the project, it is common for environmental and archaeological issues to be investigated at planning stage and any planning permission may attach conditions in this regard. Many major development projects are required to carry out an environmental impact assessment (EIA) as part of the planning process in any event and separate environmental permits may be required. Responsibility for managing such risks will then typically be dealt with in the building contract but it is important to note that even where some risks are allocated to the contractor, under environmental law, the employer may still have legal responsibility (eg, as owner of the land).

In case of unforeseen ground conditions, which are not dealt with by the contract, the contractual risk will typically lie with the contractor.

While the permits required for a construction project will depend on the nature and extent of that project (eg, waste licences, environmental permits, etc), the following permits/certificates are generally required.

  • Planning Permission under the Planning and Development Act 2000 (as amended).
  • Compliance with the requirements of the Building Control (Amendment) Act 2014 including the submittal of a Commencement Notice and Certificate of Compliance (Design) (prior to the commencement of works) and a Certificate of Compliance on Completion (on completion of the works) and related documentation.
  • Fire Safety Certificate and Disability Access Certificate under the Building Control Regulations 1997–2020.

Responsibility for general maintenance of the works following practical completion (unless the issue relates to snagging or the making good of defects by the contractor during the defects liability period) will usually be the responsibility of the employer, unless the building contract states otherwise.

Where the employer requires the contractor to continue to have an operations and maintenance role post-completion of the works, the parties will usually enter into a separate O&M agreement. (For public contracts and PPPs, see 3.8 Other Functions.)

As stated above, the functions of the contractor will largely depend on the nature and extent of the works.

Models which include operation, maintain and finance, eg, design-build-operate (DBO), design-build-finance-maintain (DBFM), and design-build-finance-operate-maintain (DBFOM) are commonly utilised in Ireland for PPPs (public-private partnerships) for the construction of state infrastructure.

Whether or not testing is required for completion will depend on the nature of the works being carried out and on the individual contract. Requirements for testing or commissioning are more likely where the works include significant mechanical and electrical works and/or where lifts, instrumentation and equipment are being installed. Large-scale energy projects, data centres and automated warehousing projects are examples of projects where testing would typically arise as a prerequisite to completion. It is common for the contractor to bear the cost of re-testing, if there are any failures in the initial testing.

The contractor will typically hand over the works to the employer at "practical completion" (or "substantial completion") upon certification by the contract administrator that the works are practically complete. The requirements for achieving practical completion will be defined in the individual building contract and may vary depending on the nature of the works (ie, certain testing or commissioning may be required before completion). Practical completion can occur in phases. The employer will then take over and become responsible for the work. Following practical completion, the defects liability period will then commence. See 3.11 Defects and Defects Liability Period.

Following practical completion, the contractor will typically be required to return to the works and "make good" any defects which arise for a particular period, usually 12–18 months. This is known as the defects liability period. At the end of this period, the final retained payment will be made to the contractor. However, the employer will still be entitled to bring proceedings against the contractor for breach of contract for a defect in workmanship and/or design (if relevant) for a period of 12 years (if the building contract is executed as a deed and does not contain any explicit limitation period) or six years (where the building contract is not a deed and no other limitation period is relevant) from the date of breach as per the Statute of Limitations 1957 (as amended) which is available at http://www.irishstatutebook.ie/. The date of breach is typically taken as the date of practical completion.

For design appointments, the time limits set out above also apply, although it is more common for design appointments to include temporal limits of liability so that the 12-year time limit applies less often.

A separate claim in tort for negligence may also be made for a period of six years from the date the cause of action accrued.

The contract price will vary depending on the contract, calculated according to a wide variety of methods, including the following:

  • fixed price, lump sum which can only be varied in limited circumstances provided by the contract;
  • guaranteed maximum price (GMP) where the contract sum is subject to a maximum cap (where works are completed for less than the GMP, some contracts provide for a sharing of the savings); and
  • cost-plus where the contractor is paid the actual cost of carrying out the works, together with a certain fee for preliminaries, overheads and profit.

Contractors are typically paid on an interim payment basis – usually monthly. The Construction Contracts Act 2013 provides for minimum payment terms for subcontracts, which also apply to main contracts where the payment terms do not meet certain mandatory criteria. Where advance design work is required or the contractor needs to procure long-lead items, an advance payment may be sought. The employer may seek an advance payment bond where significant funds are being paid in advance.

A contractual right to suspend for non-payment is typically in Irish building contracts, culminating in the right to terminate if non-payment continues (see further in 9.1 Remedies). The Construction Contracts Act also provides for a right of suspension in the event of non-payment. The right to suspend should only be exercised in clear cases of non-payment with regard to any entitlement of the employer to set off or hold back monies in respect of any counterclaim for defects, etc.

The procedure for payment and method of invoicing depend on the terms of the individual contract. However, it is usual for the process to commence with the submission by the contractor of a detailed progress statement to the contract administrator (together with such back-up documentation as may be appropriate in line with the building contract). The contract administrator will then issue a certificate of the amount due to the contractor. This certificate must then be honoured by the employer within the time period set out in the contract.

As set out in 3.1 Scope, how the programme for carrying out the construction works is managed will depend on the building contract. The contractor will usually be required to submit a programme at commencement of the works which will then be updated and reissued by the contractor at agreed intervals as the project progresses. As such, the programme is not usually binding and can be subject to change, provided the completion date is met, but is usually required to assist with monitoring progress.

In the event of a delay, the contractor will typically be required to give notice to the contract administrator and the contract administrator will determine whether an extension of time is allowable under the contract. Parties may also require that the contractor provide such notice within a specified time period as a condition precedent to recovery, and that any entitlement will be lost if notice is not given within the requisite period. 

The contractor may also be entitled to delay costs under the contract. Where this is the case, notice of such entitlement will usually be required within a specific time period and such notice may be expressed as a condition precedent to recovery.

Where the contractor fails to meet the completion date set out in the contract, it is standard for the employer to be entitled to liquidated damages as set out in the contract (usually expressed as a set figure per week or part thereof, although it can be expressed on a per-day basis).

See 5.2 Delays.

Force majeure is not always a defined term in Irish building contracts. Where it is specifically defined, the definition will typically require that the event claimed to be a force majeure event must be exceptional and something that could not have been provided for by the parties. The definition will also typically include a non-exhaustive list of circumstances, including events such as acts of God, war, rebellion, terrorism, revolution, exceptionally adverse weather conditions, natural catastrophe, etc. It is possible to exclude certain events and it is common now to see COVID-19 explicitly excluded in force majeure provisions and dealt with separately in another part of the contract.

A force majeure event will typically entitle the contractor to an extension of time.

Whether or not a contract provides for "unforeseen circumstances", as distinct from force majeure, will depend on the individual contract.

Parties may also be able to avail of the common law remedy of "frustration" to avoid the contract, but "frustration" is typically more difficult to prove and applies to a narrower set of circumstances than force majeure.

The market standard position is that liability for death and personal injury cannot be contractually excluded in construction contracts. Unlike the UK, specific legislation in Ireland barring such exclusions relates only to consumer contracts but the general consensus is that any such exclusions would be difficult to enforce and are therefore generally treated as prohibited. 

Traditionally, the concepts of gross negligence and wilful misconduct were thought to have no formal meaning under Irish law. "Wilful act" and "gross negligence" were considered by the Irish Supreme Court in ICDL GCC Foundation FZ–LLC v European Computer Driving Licence Foundation Ltd [2012] IESC 55, which confirmed that the meaning of the words depends on the context used, and how the particular contractual provision is interpreted.

It is usual for parties to seek to limit liability under both building contracts and design appointments and, when negotiating, it is common for some or all of the following limitations to be sought (although not necessarily agreed):

  • monetary cap on liability;
  • temporal cap on liability;
  • net contribution clause (in design appointment);
  • limitation to certain losses/remedies, eg, cost of replacement/repair; and
  • exclusion of indirect or consequential losses.

It is usual for the contractor and design consultants to provide an indemnity to the employer in respect of damage to third-party property, personal injury and death caused by the act or default of the contractor or relevant consultant. 

Depending on the individual building contract, a contractor may also provide an indemnity to the employer in respect of any loss or damage arising out of its breach of particular obligations relating to the environment, nuisance, disruption to existing services, anti-bribery and corruption.

Depending on the scope and complexity of the works, it is usual for an employer to seek a performance bond from an independent surety guaranteeing the performance of the contractor up to a certain value. The performance bond will usually decrease in value on practical completion and will expire completely on a particular date (usually linked to the defects liability period under the contract). Bonding at subcontractor level is also becoming more common on larger projects.

The employer may also seek a parent company guarantee from the contractor's parent but that is less common.

For the contractor's part, a parent company guarantee may be sought to protect payment, particularly when the employer entity is an SPV.

The following insurances are usual on Irish construction projects.

  • Construction All Risks insurance – provides cover in respect of the construction works.
  • Professional indemnity insurance – provides cover in respect of professional negligence and is usually required in respect of any party carrying out design work.
  • Public liability insurance – provides cover against liability for death or personal injury to third parties (ie, other than the contractor’s own personnel) and third-party physical property damage.
  • Employer’s liability insurance – also referred to as workers' compensation in some jurisdictions, this covers liability for injury to or illness in the contractor’s employees arising out of their employment.
  • Latent defects/structural defects – latent defects insurance is becoming increasingly popular for large-scale developments, while structural defects cover is typically put in place in respect of houses.

Depending on the nature of the project, other insurances may also come into play. 

It is usual for insolvency to trigger a right to terminate the construction contract for the non-insolvent parties. The entitlements upon such termination will vary depending on the individual project.

Risk sharing is dependent on the building contract itself and where particular risks carry a delay and cost risk, one party may agree to take the time risk while the other party takes the cost risk (ie, the contractor will be entitled to an extension of time but not any damages for such delay). The parties are free to agree to share certain risks and COVID-19 has seen many parties opt to share the risk of COVID-19-related events.

Foreman or Site Manager

Construction contracts vary according to the nature and extent of specific personnel required for the project. It is standard, however, for a contractor's representative (also called a foreman or site manager) to be identified. This representative will be present on site and authorised to supervise the works and receive instructions given by the employer.

Safety Officer

Construction contracts in Ireland also commonly identify a safety officer with responsibility for health and safety on site. In the wake of COVID-19, this safety officer or another separately identified person may also be responsible for monitoring compliance with COVID-19 requirements on site.

PSCS and PSDP

Separate to any contractual requirements, the Safety, Health and Welfare at Work (Construction) Regulations 2013 require the appointment of a project supervisor for the construction stage (PSCS) and a project supervisor for the design process (PSDP) where a construction project meets certain criteria. The contractor is often, but not always, appointed as PSCS.

There is no general restriction on subcontracting in Ireland. Each particular building contract will regulate the extent of subcontracting allowed and/or the level of consent required. For design appointments, the ability to engage subconsultants will usually require consent.

It is standard in the market that any copyright and IP remains with the party who created it. The employer will usually seek an irrevocable, royalty-free licence (including the right to grant sub-licences) to reproduce, copy and use any IP produced by or on behalf of the contractor and/or design consultant in connection with the relevant works, for all purposes connected with such works. Collateral warranties provided in favour of funders or other parties by a contractor or a design consultant will usually contain a similar licence.

The main remedy for parties to a construction contract is a claim for damages due to breach of contract.

Whether a particular breach will give rise to a termination right, will depend on the wording of the contract. Typically, the employer will have broader termination rights which may include the right to terminate for "serious" or "material" breach. The contractor's or consultant's right to terminate is more likely to be restricted to failure to make payment or insolvency.

Where the contractor is in breach of its obligation to complete the works by a certain date, the employer is usually entitled to liquidated damages (see5.3 Remedies in the Event of Delays and 9.3 Sole Remedy Clauses).

See 6.3 Limitation of Liability.

It is standard for liquidated and ascertained damages (LADs) for delay to be included in Irish building contracts. While LADs provisions often do not explicitly provide that LADs are to be the sole remedy for delay, it is generally understood, in line with the English law position, that they are.

It is not uncommon for parties to seek to exclude liability for indirect and consequential losses. Where such exclusion is agreed, it is usually on a mutual basis.

Retention

It is standard to provide for retention in Irish building contracts. Retention can vary depending on the nature of the works but typically between 3–5% is retained from payments during the course of the works. It is usual for one half of the retention monies to be refunded to the contractor at practical completion with the remainder held until the end of the defects liability period (usually 12–18 months post practical completion). The full value of the retention may be returned at practical completion where the contractor gives a retention bond. Although a retention bond is provided for in the RIAI standard form of contract, it is not common in the market.

Suspension by the Contractor

Building contracts typically provide a right of suspension for non-payment. Under the RIAI standard form of contract, the contractor is entitled to suspend for non-payment (after five working days' notice to the employer) for a period of ten working days, following which, the contractor is entitled to terminate.

The Construction Contracts Act 2013 also provides for suspension of works for non-payment. While this is a very powerful tool where payment is not flowing down as it should, it should only be utilised in very clear cases of non-payment. This is because an unjustified suspension will leave the suspending party liable for delay and open to a claim for compensation and damages for any loss caused by the suspension. 

Suspension by the Employer

While a general right for the employer to suspend works is not provided for in the RIAI standard form of contract, it is not unusual for such a right to be included by way of amendment. Typically, such an amendment will allow the employer to suspend works by way of project manager instruction with no right for the contractor to terminate until a certain amount of time has elapsed.

Except for where the construction contract says otherwise, parties to a construction contract in Ireland will have a right to refer matters to the Irish courts (the particular court to which the matter is referred will depend on the value of the claim). For proceedings issued in the Irish High Court, there is an option to transfer the matter to the commercial court provided certain requirements are met. The commercial court provides a fast-track, case-managed forum and can be attractive for larger construction disputes.

Statutory adjudication under the Construction Contracts Act 2013 provides parties with a statutory right to refer disputes relating to payment to adjudication, and issuing proceedings in the High Court or any other forum will not interfere with this right.

ADR is very popular in the construction sector in Ireland with mediation, conciliation, expert determination and arbitration featuring heavily.

It is common for building contracts and design appointments to contain a two or three-tier dispute resolution process with senior management negotiation, mediation and/or conciliation included as prior steps before the dispute is referred to a final forum for dispute resolution.

Arbitration features heavily in Irish construction contracts as the forum of final dispute resolution.

A number of professional industry bodies, such as Engineers Ireland and the RIAI, provide their own conciliation and mediation procedures, which can be utilised by parties seeking to resolve matters by these mechanisms. These professional bodies also have panels of mediators, adjudicators and arbitrators to which parties can refer matters.

While the conduct of ADR remains largely at the discretion of the parties and the procedure set out in the contract, the following legislation is relevant:

  • the Mediation Act 2017 and the Court Rules (Rules of the Superior Courts (Mediation)) 2018; and
  • the Arbitration Act 2010.

For more on these Acts, go to http://www.irishstatutebook.ie/.

For public sector works, disputes are resolved by conciliation followed by arbitration.

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