Geoffrey Osborne Ltd V Atkins Rail Ltd

The adjudicator was wrong in law to have ordered to order payment of sums to the sub-contractor in respect of his assessment of the value of its claims in its payment application 36 without taking into account any sums paid or allowed by the contractor in respect of its payment application 35
 

 

GEOFFREY OSBORNE LTD V ATKINS RAIL LTD
Technology and Construction Court
Edwards-Stuart J
8 October 2009
 

 
The sub-contractor submitted initial claims in respect of two items of work. The contractor made an assessment of and paid some monies in respect of these claims in interim payment certificate 35. The sub-contractor submitted further claims in respect of these items in interim payment application 36. The sub-contractor began an adjudication and asked the adjudicator to assess the value of these two items. The adjudicator assessed the value of these two items but wrongly omitted to deduct the amounts already assessed by the contractor and included by it in respect of those items in interim payment certificate 35 and ordered the contractor to pay the sub-contractor a specified sum. Court proceedings were brought in which the sub-contractor sought to enforce the adjudicator’s decision and the contractor sought various declarations, including one setting aside the decision in consequence of the adjudicator's mistake.
 
Edwards-Stuart J held that a declaration should be made that the adjudicator was wrong in law to have ordered payment of sums to the sub-contractor without taking into account and, if appropriate, deducting from the amounts assessed any sums paid or allowed by the contractor to the sub-contractor in respect of its payment application 35. Whilst the adjudicator was wrong in law and/or fact to have ordered payment of sums to the sub-contractor, his decision was nevertheless made within his jurisdiction, he could not be said to have answered “the wrong question” and no order setting aside the decision should therefore be made. The court was not, however, prevented by the decision in Bouygues v Dahl-Jensen from entertaining an application that the court should reach a final decision on a question decided by the adjudicator if it did not involve any substantial dispute of fact and could be finally determined on the material before the court. A final decision should be made by the court by way of declaration that the adjudicator was wrong in law to have ordered payment of sums to the sub-contractor on the basis that his decision did not reflect the sub-contractor’s legal entitlement.
 
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