| Date | 17 October 2001 |
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| Judgment | Mid Glamorgan County Council -v- J Devonald Williams ORB 17 September 1991 |
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| The Issue | Acceptance of global claims for delay and loss and/or expense. |
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| Implication |
Whilst it is generally a requirement to prove the connection between claim events and their consequences upon delay and disruption, the financial effects may be presented upon a global basis where it is impossible to distinguish otherwise. |
printAlthough there have been a number of cases in recent years dealing with global claims, none have altered to any significant extent the guidance given in a case reported almost exactly 10 years ago. The story remains very common. Mid-Glamorgan Council had been forced to settle substantial delay and disruption claims from its main contractor and various nominated sub-contractors arising out of a project for alteration and extension to the Rhondda College of Further Education. In an attempt to recover these losses, in May 1988 it issued proceedings against the project architects, J Devonald Williams, alleging breach of its terms of engagement and negligence. Throughout the preparation of its case, however, the Council had difficulty in particularising its claim against the architect. One of its principal allegations was in effect that the architect had failed to supply information to the contractor at the correct time. When the court first ordered particulars of this complaint, the Council's response was to extract some entries from the minutes of the site meetings and to list all the architects' instructions. A second attempt saw these instructions scheduled against the contractor's programme, albeit with recognition that "by the time programme C took effect the work was so delayed and disrupted that the contractor was unable to analyse when information was required". When asked to particularise the damages flowing from each breach, the Council admitted that it could not allocate the damages between the various breaches, and claimed them on a composite or 'global' basis. Not surprisingly, the architect applied to the court for an order that the Statement of Claim be struck out on the grounds that it would prejudice, embarrass or delay the fair trial of the action, or otherwise be an abuse of the process of the court. John Tackaberry QC, sitting as a recorder in the Official Referee's Court, decided that claims formulated in this manner were, in principle, maintainable provided that it was impracticable or impossible to break down the complex interaction of events with greater precision. Accordingly, he dismissed the defendant's application to strike out the claim. In doing so, he reviewed the three leading cases which had been assumed to provide guidance in relation to 'global' or 'rolled-up' claims. In the first of these cases, Crosby -v- Portland UDC (1967), a 52-week contract programme had been delayed by 46 weeks. In considering the link between the events relied upon, the consequential delay, and the expense incurred by the contractor, the arbitrator had this to say: "The result, in terms of delay and disorganisation of each of the matters referred to above was a continuing one. As each matter occurred its consequences were added to the cumulative consequences of the matters which had preceded it. The delay and disorganisation which ultimately resulted was cumulative and attributable to the combined effect of all these matters. It is therefore impracticable, if not impossible, to assess the additional expense caused by delay and disorganisation due to any one of these matters in isolation from the other matters." He therefore went on to award a lump sum in respect of this element of the contractor's claim and invited the court to decide as a matter of law whether or not he was entitled to do so. The judge had no difficulty in ruling that the arbitrator was justified in awarding as he had done. His judgment contained the much repeated passage: " . . . I can see no reason why he should not recognise the realities of the situation and make individual awards in respect of those parts of individual items of the claim which can be dealt with in isolation and a supplementary award in respect of the remainder of these claims as a composite whole." In London Borough of Merton -v- Stanley Hugh Leach (1985) the analysis in Crosby was clearly followed in similar circumstances. Here, the often quoted words of Mr Justice Vinelott were: " . . . a rolled up award can only be made in a case where the loss or expense attributable to each head of claim cannot in reality be separated and . . . . where apart from that practical impossibility the conditions which have to be satisfied before an award can be made have been satisfied in relation to each head of claim." Recorder Tackaberry also considered the decision in Wharf Properties Ltd -v- Eric Cumine Associates (1991), where the statement of case was struck out. Here the court had been more concerned with the 'speculative' nature of the pleading and the belligerent attitude of Wharin failing to respond to orders for particulars. In summary of these three cases, and with particular reference to Crosby, recorder Tackaberry provided the following principles: A proper cause of action has to be set out; Where specific events are relied upon as giving rise to a claim for monies under the contract, then any contractual pre-conditions, such as notices, will have to be satisfied in respect of each of the causative events relied upon. When it comes to quantum, whether time based or not, and whether claimed under the contract or by way of damages, then a proper connection should be demonstrated which relates each event relied upon to the money claimed. Where however a claim is made for extra costs incurred through delay as a result of various events whose consequences have a complex interaction that renders specific relation between the event and the time or money consequence impossible or impracticable, it is permissible to maintain a global claim.
CJ-0141
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