Cases - How Engineering Services Ltd v Lindner Ceilings Floors Partitions plc
Record details
- Name
- How Engineering Services Ltd v Lindner Ceilings Floors Partitions plc
- Date
- [1999]
- Citation
- CILL 1521
- Legislation
- Keywords
- Construction ? litigation ? loss and expenses ? JCT contract ? arbitrator ? assessment of loss and expenses ? arbitrator assessing loss and expenses ? burden of proof ? analogous to assessing damages for breach of contract
- Summary
-
The decision in this case clarifies that when an arbitrator is 'ascertaining' loss and expense under a JCT contract, his or her approach should not differ from that which may properly be followed when assessing damages for breach of contract.
Prior to this case, many commentators had argued that 'to ascertain' meant 'to find out for sure', and that a higher level of evidential proof should therefore be applied than the 'balance of probabilities' test applied by the civil courts when assessing damages for breach of contract. (See in particular the decision of HH Judge Lloyd QC in Alfred McAlpine Homes Ltd v Property and Land Contractors Ltd [1995].)
Dyson J said:
'in my view it is unhelpful to distinguish between the degree of judgment permissible in an ascertainment of loss from that which may properly be brought to bear in an assessment of damages. A judge or arbitrator who assesses damages for breach of contract will endeavour to calculate a figure as precisely as it is possible to do on the material before him or her. In some cases, the facts are clear, and there is only one possible answer. In others, the facts are less clear, and different tribunals would reach different conclusions...There is no place for pure speculation in the ascertainment of loss or expense, any more than there is in the assessment of damages.'