International Construction Law Review
MODERNISING THE CLAPHAM OMNIBUS: NEW PERSPECTIVES FOR REASONABLENESS IN EPC CONTRACTS
ABDUR REHMAN SHEIKH, MA, BS
Contracts Manager, Sicim SpA, Busseto (PR), Italy
1. INTRODUCTION
The legal fiction of the “man on the Clapham omnibus” first emerged in late 19th century English jurisprudence as a personification of ordinary prudence and reasonable conduct. The term gained judicial recognition in the 1903 case of McQuire v Western Morning News, where Sir R H Collins MR invoked this hypothetical London commuter to represent societal standards of reasonableness, attributing the phrase to Lord Bowen.1 This construct has since become a cornerstone of common law systems worldwide, serving as an objective measure against which professional conduct is evaluated.
More recently, the Clapham Omnibus was recalled in the UK Supreme Court’s judgment in Healthcare at Home Ltd v Common Services Agency (2014). Lord Reed reiterated its enduring relevance as an objective legal standard, adding multiple perspectives of reasonableness:
“The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.”2
He then goes on to include another passenger, an industrious but shy acquaintance of those involved in construction, namely, “the reasonably well-informed and normally diligent tenderer”, borrowing from a famous case brought to the European Court of Justice.3
1 In McQuire v Western Morning News Co Ltd (CA) [1903] 2 KB 100, the Court of Appeal introduced the “man on the Clapham omnibus” as the standard of the ordinary reasonable person, used to assess fair comment in defamation, laying the foundation for reasonableness in legal standards.
2 In Healthcare at Home Ltd v Common Services Agency (SC) [2014] UKSC 49; 2014 SLT 769; [2014] 4 All ER 210 at paragraphs 15 to 17, the UK Supreme Court held that tender documents must be clear to a “reasonably well-informed and normally diligent tenderer”, as an objective standard explicitly rejecting the need for bidding criteria to eliminate all ambiguity or ensure identical interpretations.
3 Reference is made to the Irish case viz. SIAC Construction Ltd v Mayo County Council (CJEU)
Case C-19/00 [2001] ECR I-7725; ECLI:EU:C:2001:553 at paragraphs 34 to 37 whereby the European Court of Justice clarified that public procurement awards must ensure equal treatment and transparency, with the “reasonably well-informed and normally diligent tenderer” standard ensuring fairness in tender evaluations.
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