London Underground Ltd v Citylink Telecommunications Ltd Rev 1

Challenges under section 68 of the Arbitration Act 1996 require both a qualifying procedural irregularity and substantial injustice. The court’s role is a longstop against unfair arbitration, not a review of whether the tribunal reached the correct factual or legal result. A tribunal may decide a case on the pleaded and argued material, draw inferences from primary facts, and resolve a partially successful global claim without seeking further submissions, provided fairness is preserved. Section 68(2)(d) concerns essential issues, not every argument or alleged deficiency of reasoning. Under section 69, leave requires a properly identified question of law which substantially affects the parties’ rights, was submitted to the tribunal, is obviously wrong on the findings of fact, and should be determined despite the parties’ agreement to arbitrate.

London Underground Limited and Citylink Telecommunications Limited brought cross-applications under sections 68 and 69 of the Arbitration Act 1996 concerning an interim award in their delay and disruption arbitration under the Connect Project contract. The arbitrator rejected CTL’s global delay analyses but found that LUL’s breach of the Corporate Power Obligation at Edgware Road caused 48 weeks’ delay to commissioning of the Corporate Line, granting a corresponding interim extension of time.

LUL alleged that the arbitrator had decided an unpleaded and unargued case. CTL alleged procedural irregularities, failures to deal with issues, and errors of law. The central questions were whether the award involved serious irregularity causing substantial injustice and whether CTL had identified any qualifying question of law for an appeal.

1. LUL’s section 68 application. The arbitrator’s finding that lack of power at Edgware Road delayed Corporate Line commissioning by 48 weeks was within CTL’s pleaded case, submissions and evidence. CTL had pleaded the Corporate Power Obligation, the effect of power on commissioning, the importance of the Corporate Line, and the position at Edgware Road. The arbitrator was entitled to draw the necessary conclusions from primary facts and to allow for the 13-week mitigation period.
2. The approach to global claims in Laing Management (Scotland) Ltd v John Doyle Construction Ltd [2004] BLR 295 was accepted. A claim may fail in its global form while evidence still permits causal links between particular breaches and particular delay, or rational apportionment. The surviving result may be determined from the evidence already adduced, subject to the limits of fairness.
3. Section 68(2)(a) embodies fairness or natural justice. A tribunal should give notice of a new material issue or major primary finding which the parties have not had a reasonable opportunity to address. It need not refer every inference of fact back to the parties, especially in complex factual or expert cases. Section 68(2)(c) added no separate issue on these facts, and section 68(2)(d) concerned essential issues rather than every argument or alleged deficiency of reasoning.
4. Even if an irregularity had existed, the court would have required substantial injustice. The statutory test asks whether inappropriate means might realistically have led to a conclusion favourable to the applicant. The interim nature of the extension meant that its length remained reviewable in a later arbitration.
5. CTL’s section 68 application. The complaints concerning the construction of the UD07 correspondence, the priority stations, EPC design evidence, Network Rail’s General Works Agreement and the 13-week credit either concerned autonomous fact-finding or issues the arbitrator had addressed. The Bank/Monument complaint disclosed an irregularity because the arbitrator relied on an unargued point concerning the Claim Period, but it did not establish substantial injustice.
6. CTL’s section 69 application. The proposed grounds generally failed to identify questions of law. Section 69 does not permit factual re-argument, review of evidential weight, or an attempt to draw inferences from the award’s findings. The arbitrator’s conclusions on contractual construction, reasonable dates, the CMS and HVAC obligations, the UD07 yardstick, Jubilee Line delay, causation and the 13-week allowance were not obviously wrong on the findings made. The parties’ detailed, final and binding arbitral procedure and choice of an experienced arbitrator made it not just and proper to grant leave.
7. LUL’s section 68 application and CTL’s section 68 application were dismissed. CTL’s applications for leave to appeal under section 69 were refused.

First-instance decision on cross-applications concerning an arbitration award. No prior appellate decision is stated in the judgment.