I mean to say, there you are, a decent, hardworking, diplomatic QS or project manager whose programme lasts about the same length of time as a snowball in the Sahara sun. And that's all because of these goings-on. The effect, of course, is that the budget gets blown.
The blokes are standing waiting while the change of mind, the mistake, the absent information gets sorted out. And this malarkey happens every day – no, no, every hour. Your estimator priced first-fix labour at £120k.
Forget it. That will double.
When all the added expense gets added up and someone asks to be compensated, the customer will shout out "global claim" and laugh and roll about with glee. "Go on – prove it," giggles the potential payer. He might just as well bellow "Mornington Crescent", since "global claim" is intended to mean nothing at all – just like on that Radio 4 quiz programme.
The arguments for and against global claims – rehearsed by four barristers in a recent quarrel between John Doyle Construction Ltd and Laing Management (Scotland) Ltd – are worth reading. John Doyle did a couple of trade packages in Edinburgh. "We want 22 weeks' extension of time; loss and expense in prolongation and for all sorts of day-upon-day difficulties on site," said Doyle. "Oh dear," said Laing.
The management contractor put a sympathetic arm around Doyle’s shoulder and whispered the reason why the global claim must fail
The management contractor put a sympathetic arm around Doyle's shoulder and whispered the reason why the global claim must fail. The real snag, it said, is that the claimant simply presents his actual cost of labour, plant and so on, minus the estimated cost. He might be escaping from a bad estimate, might be getting away scot-free with his own mess-ups.
Laing said that the only way to succeed was to identify each and every disruptive event. If it was impossible to trace cause and effect because it was a jumble of contracting causes, and if some of those events or causes of loss were the trade contractor's own fault, then, Laing said, the whole claim failed. After all, if you cannot unravel and trace the cause of your losses to the customer, then the global claim must fail.
Doyle appreciated the advice, but had ideas of its own. If the trade contractor and the management contractor had concurrent causes for delay, the significance could be worked out at trial. It went too far, said Doyle, to claim that one's "own cause" torpedoed the whole claim. The trade contractor also pointed to the construction law books. They did not speak with one voice, said Doyle's barrister.
The judge could immediately see how both parties agreed that global claims could, in principle, be legitimately advanced in construction contracts. It was not improper when the claimant could not link each and every cause of delay and disruption and the consequent cost thereof. It remained crucial, however, to prove the true cause of the losses. No court, arbitrator or adjudicator could impose a liability on a defendant that was not legally his. Advancing a claim for loss and expense in global form was therefore a risky enterprise. But failure to prove one event would not have an adverse effect on the claim provided the remaining events were proved to have caused the global loss.
In any event, it was not always true, said the judge, that if the global claim as such failed, it did not follow that no claim would succeed. It might still remain possible to attribute individual sums of loss or expense to individual causative events. In other words, a certain event might plainly connect with losses and it might always be possible to make a rational apportionment of part of the global loss for which the defender had been held liable. And as to fathoming what loss might be caused by some or other event in the jumble of events, that cause must be treated as a common sense matter, said the judge.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.