UK: Adjudication: A New Way Of Preventing Enforcement

Last Updated: 1 February 2010
Article by Liam Hart and Julian Bailey

If an adjudicator has made a mistake (even a serious one) in his decision, the error will not invalidate the decision. Given the time limits involved, adjudication is an inherently "rough and ready" process, and the courts have emphasised that any mistakes should be dealt with by way of final determination by the courts or arbitration. "Pay now, argue later" is the credo. But a recent case highlights how if a final decision is obtained from a court or tribunal, declaring the adjudicator to have made an error, that can be used as a basis for the court not enforcing the adjudicator's decision.


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"). 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.

The Court was asked to deal with two applications simultaneously. GOL sought enforcement of the adjudicator's decision by way of summary judgment, whilst ARL sought declarations that (a) the adjudicator lacked jurisdiction and (b) that the decision was wrong as a matter of fact and/or law and should not be enforced.

The judgment

The judge held:

  • 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.
  • ARL was not entitled to a declaration that the adjudicator had no jurisdiction, but was entitled to a declaration that the adjudicator had erred in fact and/or law.
  • 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.


This case has major implications.

  • It confirms that unsuccessful parties in adjudications can seek to avoid the enforcement of the adjudicator's decision by seeking a declaration from the court (or an arbitral tribunal) that the adjudicator got it wrong. The final declaration of the parties' rights then trumps the provisionally-binding decision of the adjudicator, which may result (as here) in the decision (or a substantive part of it) not being enforced, if the court (or tribunal) finds that the adjudicator did indeed get it wrong.
  • It will not always be possible to get a speedy final decision from a court or tribunal (on whether the adjudicator got it wrong) before adjudication enforcement proceedings have been completed. Errors that are fact heavy, and require lengthy investigation of the underlying dispute, will not always be capable of being dealt with quickly by a court or tribunal. Where, however, an adjudicator has made a clear blunder that requires little argument and evidence to identify, a speedy declaration to that effect may be obtained. Such a declaration may be relied upon as a basis for refusing to enforce the adjudicator's decision, or relevant parts of it (although it remains to be clarified how far the courts are prepared to go in granting declarations as to matters affecting only part of an adjudicator's decision).
  • This decision may prompt some parties to refer disputes which turn on points of law to the courts instead of, or before an adjudication (for example cases where it is disputed whether an effective withholding notice was given). This is because if when enforcing an adjudicator's decision the court may re-decide discrete points of law it may ultimately be quicker to litigate those points in the first instance, as well as cheaper (in a forum that also permits costs recovery).


There is now a sizeable body of case law where adjudicators' decisions have not been enforced (including where the successful party is insolvent) ( ), and also where payers have been able to avoid making payment where they should have, but did not, issue a valid withholding notice ( To compound matters, it is increasingly common for adjudication enforcement proceedings to be expensive. All of this begs the question as to how effective the Construction Act is (and will be, in its amended form) in achieving its avowed objective of improving cashflow, at a time when cash is more important than ever. To get paid quickly, is it better to adjudicate, or go straight to court? Cases like the one considered above suggest that the latter option may often be preferable.

Reference: Geoffrey Osborne Ltd v Atkins Rail Ltd ( [2009] EWHC 2425 (TCC) (judgment in this case was handed down on 8 October 2009 but has only recently become available)

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 29/01/2010.

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