International Construction Law Review
THE EVOLUTION OF GLOBAL CLAIMS AND LAING MANAGEMENT (SCOTLAND) LTD v. JOHN DOYLE CONSTRUCTION LTD
GEOFFREY SMITH AND JAMES PERRY
INTRODUCTION
It is almost 40 years since the English courts opened the door to global claims, recognising that a complex interaction between the consequences of the various causes of loss might make it extremely difficult or even impossible to ascertain with accuracy the effects of any single causative event. However, the door was only slightly ajar and, prior to admitting any global claim, the courts have systematically imposed strict conditions with respect to the pleadings and above all with respect to any contribution to the damage that may have been made by the claimant himself.
A global claim, in its crudest form, alleges that the entire difference between the contractor’s tender price and his actual costs has arisen from a number of breaches by the employer, and makes little or no attempt to link the alleged effects to individual breaches. In the event that the contractor has himself made a material contribution to this increase in costs, either by under-pricing his tender, by his own inefficiencies or otherwise, the employer would be unduly penalised if the courts were to accept such a claim without imposing strict conditions. The courts have therefore chosen to reject global claims where the employer has been able to show that the contractor has made more than a trivial contribution to the alleged damage.
This position has, unfortunately, often led to a result which is equally unjust. Not infrequently, it is the employer who has obtained a windfall, a contractor’s claim that is justified to a large extent being rejected because of a single cause of damage attributable to the contractor himself for which it is impossible or impracticable to isolate the effects.
On large projects, which cost hundreds of millions of dollars or euros, employing thousands of workers, it is not unusual to encounter thousands of causes of delay and/or loss. Some of these causes can be treated in isolation and their effects evaluated and proved; inevitably, and no matter what records the contractor maintains, others cannot and must be treated globally. (An example is the loss of productivity that may result from a number of variations instructed with respect to the same work, within a short period.)
In such circumstances, the employer and his representatives frequently rely on two lines of defence. The first is to impose (often by contract) a level
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