Geoffrey Osborne v Atkins Rail Ltd [2009] EWHC 2425 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

For more information visit


Where a final decision is obtained from a court or tribunal, declaring the adjudicator to have made an error, this can, in certain circumstances, be used as a basis for the court not enforcing the adjudicator’s decision.

Technology and Construction Court, Mr Justice Edwards-Stuart


Atkins Rail Ltd (“ARL”) was employed by Network Rail as the main contractor for the design and construction of signalling works. ARL sub-contracted the civils works to Geoffrey Osborne Ltd (“GOL”).  The sub-contract between the parties was subject to the Railtrack PLC Adjudication Rules.  ARL and GOL fell into dispute, which was subsequently referred to adjudication. The Adjudicator made a significant error in his decision in that he failed to take into account certain sums that had been certified and paid by ARL to GOL. If his decision had been followed, it would have resulted in ARL having made on overpayment of more than £900K.  ARL refused to pay on the Adjudicator’s Decision.  GOL sought enforcement of the Adjudicator’s decision by way of summary judgment.  ARL sought declarations that (a) the Adjudicator had no jurisdiction to make the decision that he did (on the basis that he had answered a different question than the one asked of him) and (b) that the decision was wrong as a matter of fact and/or law and should not be enforced.  The Court was asked to deal with the two applications simultaneously.

The issues

The Court addressed the following issues:

  • Whether the Adjudicator had the jurisdiction to make the decision that he did.
  • Whether the Court should grant a declaration to the effect that there had been a manifest error by the Adjudicator, and thus set aside the award.
  • Whether or not the Court could sever the “bad” part of an adjudicator’s decision from the rest of the decision, and only order enforcement of the “good” part.

The judgment

The Court held:

  • On the facts of the case, the Adjudicator had answered the question which he had been asked, and ARL’s argument that he lacked jurisdiction therefore failed.
  • The Adjudicator was wrong in law to make an order directing ARL to pay a sum that made no allowance for the sums already paid.
  • ARL was not entitled to a declaration that the Adjudicator had no jurisdiction or that the award should be set aside, but was entitled to a declaration that the Adjudicator had erred in fact and/or law in failing to take into account previous payments.
  • The courts have the power to make a declaration which results in a final determination on a question decided by an adjudicator, provided that the question does not involve any substantial dispute of fact, and that the court can finally determine the issue on the basis of the material in front of it.
  • If there is part of an adjudicator’s decision that can be isolated and finally determined by the court, then the court is at liberty to make a final determination pertaining to that part of the matter.  It is not necessary that the court be in a position to determine the whole of the dispute.
  • GOL was therefore not entitled to enforce the bulk of the Adjudicator’s decision.  GOL was only entitled to summary judgment insofar as it related to the Adjudicator’s award in respect of costs and fees.  Where an adjudicator has a discretion to make a costs order, there must be something very seriously wrong with the process by which the adjudicator had arrived at the order before the Court would interfere with it.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit

Click here to read full-screen | Click here to print the case