In this final part of a three part series, Michael Black QC, summarises the general principles regarding global claims, in an 8-point checklist.

Do you comply?

In summary:
(1) Rolled-up claims may be used both in relation to monetary and time claims. A total costs claim is not outlawed but is to be viewed with caution, if not suspicion.

(2) The Contractor must first establish that events have actually occurred which entitle him to the reimbursement or extension sought, ie the factual basis of each claim must be identified separately.

(3) He must then show that he has complied with the contractual machinery for making claims in respect of each such event.

(4) Where elements of the claim can practicably be isolated the Contractor must present claims in respect of which. Individual awards may be made. A cause that could have been considered in isolation will be disregarded in assessing the global loss.

(5) Even if the consequences of the individual heads of claim cannot be disentangled from each other, nonetheless the Contractor must still establish that each head of claim qualifies him for the benefit sought, ie that each head did cause some delay or disruption.

(6) The global approach is strictly limited to assessing the amount of the claim in time or money, as opposed to determining the Contractor’s entitlement. In other words it can only be applied to quantum not liability.

(7) The global approach is only justified in cases where it is difficult or impossible to make an accurate apportionment between interactive causes. The approach is one of last resort and cannot be used to lump all delaying events together to justify a total overrun or financial shortfall.

(8) The Contractor must not have delayed in making his claim and thereby created the difficulty in apportioning the delay or loss or expense between causes.

Michael Black QC is the Head of the Construction Group at 2 Temple Cardens, London EC4Y 9AY
telephone number : +44 20 7822 1200
e-mail: mblack@2templegardens.co.uk