| Date | 27 August 1997 |
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| Judgment | Bernhards Rugby Landscapes -v- Stockley Park Consortium Limited, 7 February 1997, 82 BLR 39 |
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| The Issue | Pleading of global claims. |
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| Implication |
In certain circumstances the connection between the employer's breach and the contractor's additional costs may be inferred rather than demonstrated in pleadings, subject to the issues being clearly defined such that the parties may be aware of the strengths and weaknesses in their respective cases. |
printIn recent years contractors and their advisors have often confused the manner in which they are obliged to prove their claims with the manner in which they may be expected to present their claims in arbitration or litigation. The term global claim in the context of the pleading of a case in arbitration or litigation is usually intended to describe a claim where the causal connection between the matters complained of and their consequences, whether in terms of time or money, are not fully spelt out. A common version of the global claim might be described as a total costs claim, in which the contractor will allege a number of breaches of contract on the part of the employer and quantify its global loss as the actual cost of its work, less its expected cost. Such claims have presented enormous difficulties to the courts. On the one hand they are intent in establishing proper case management such that the dispute between the parties should be determined expeditiously, economically and above all fairly. Additionally, defendants are entitled to know the case which they have to meet. On the other hand, as was stated in the 1994 case of GMTC Tools -v- Yuasa Warwick Machinery, plaintiffs should be allowed to formulate their claims for damages as they wish and not be forced into a straight jacket of the Judge's or the opponent's choosing. These difficulties were examined in the recent case of Bernhards Rugby Landscapes v- Stockley Park Consortium. Bernhards was a landscape contractor who entered into a contract for the construction of a new golf course at a reclaimed landfill site at Stockley Park in the London Borough of Hillingdon. The contract was loosely based upon the ICE conditions fifth edition, with a construction manager appointed with broadly the powers which the engineer would usually exercise. Difficulties were encountered in the project from the very start and the contractor's final account made claims for additional costs arising from extensive variations, delay and disruption. These were complicated documents comprising many hundreds of pages. They contained narrative sections, schedules, appendices and numerous back-up tables. Eventually, Bernhard launched into proceedings by way of a Writ with a Statement of Claim and accompanying schedules which were in essence no more than this claim document. The Court was unimpressed. The Judge considered that whilst it was clearly desirable to make the best use possible of material that had already been prepared so as to avoid unnecessary costs being incurred and to maintain a continuity of approach, it must not be forgotten that there was a marked difference between the form and content of a claim presented under the terms of the contract for consideration by an architect or engineer, and the presentation of a claim in legal or arbitral proceedings. In litigation a claim has to comply with procedural rules which should secure that the plaintiff's case is presented after careful analysis and in a manner which will enable the defendant to plead to it in such a way that the issues which have to be decided between the parties may be clearly identified. Narratives which are in themselves persuasive presentations of a party's claim may well be unsuitable for incorporation lock, stock and barrel in a pleading, either because they fail to disclose the true grounds or cause of action or because they are repetitive or argumentative. Recognising the shortcomings of their pleaded case Bernhard applied for leave to substitute a new Statement of Claim. Stockley Park's solicitors applied to strike out the pleading. In addition they opposed the amendments to the Statement of Claim on a number of different grounds. The striking out was refused. His Honour Judge Humphrey Lloyd QC said that the power to strike out was very limited. It may be used where the claim is so evidently untenable that it would be a waste of resources for this to be demonstrated only after a trial. Striking out might also be allowed where following requests for particulars the pleading remained likely to prejudice, embarrass or delay the fair trial of the action. Dealing with the dispute over the "total costs" basis of the claim, the Court held that such a claim would be permissible where it was impractical to disentangle that part of the loss attributable to each head of claim, providing this situation had not been brought about by delay or other conduct on the part of the plaintiff. Such circumstances led to the inference that the employer's breaches caused the cost over-run and the causal nexus was inferred rather than demonstrated in the pleading. This however would have to be balanced with the basic requirement, which is really one of natural justice, that a party should be told the nature of the case that he has to meet so that he has an opportunity of meeting that case.
CJ-9731
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