TCC allows Laing v Doyle approach to global claims 1

United Kingdom

Following the Scottish decision in Laing v Doyle (2004), many in the construction world thought that the pursuit of global claims would become easier.  In essence, the Laing v Doyle approach is that where it can be shown that some of the events that cause a delay or a loss are not actually the responsibility of the employer, the global claim should not necessarily fail, since it may be possible to apportion the loss as between the causes for which the employer is responsible and other causes, provided that sufficient evidence is presented.

However, there has been uncertainty about whether the Laing v Doyle approach to global claims would be accepted in the English courts.
In the recent case of London Underground v Citylink, the TCC considered the approach set out in the decision of Laing v Doyle on appeal from an arbitrator's award.  The arbitrator had followed Laing v Doyle, and his approach was challenged in the TCC.  It held that:

1. The John Doyle approach was acceptable.  However, it is important to note that neither party contended otherwise.

2.  The pleading of causation (e.g. that a number of events caused a total delay of X weeks) need not be over elaborate, covering every possible combination of contractual events that might exist or covering the delay that might be said to flow from every possible combination of such events.

3.  Where a global claim is advanced it will be for the tribunal to determine whether there is a sufficient evidentiary basis for showing a link between cause (e.g. breaches of contract, variation instructions) and effect (i.e. delay, disruption, increased cost, or any combination of those).

4.  If a global claim fails, in the sense that the tribunal (or indeed a court) does not accept that all of the pleaded events caused a total delay of X weeks, this does not necessarily mean that the claimant will be unsuccessful overall.  It may, for example, be open to the tribunal to find that there were some events - for which the employer was responsible - that caused the contractor to be delayed.  If it is clear that the contractor has been delayed by the employer, it may be open to the tribunal to find that the contractor ought to have been granted an extension of time of Y weeks (where Y < X), and possibly also that it is entitled to compensation for that period of delay.

One note of caution: London Underground v Citylink should not be seen as a ringing judicial endorsement for the Laing v Doyle approach to global claims.  The case concerned the review of an arbitrator's award.  The grounds for reviewing arbitrators' awards are very narrow.  Just because it was acceptable for the arbitrator to apply Laing v Doyle, this does not necessarily mean that it will be acceptable in proceedings originated before a court (or another arbitrator or adjudicator). 

It seems, however, that it is unimportant whether a claim is given the tag of "global claim", or some other description.  What matters in delay cases (and indeed all cases) is that the case is presented in sufficiently clear terms, and above all that it is persuasive. 

Reference: London Underground Ltd v Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC)