event as a result of Contractor Delays, the Contractor will not be entitled to recover those additional costs. In most cases this will mean that the Contractor will be entitled to compensation only for any period by which the Employer Delay exceeds the duration of the Contractor Delay.
Global Claims
This topic was also considered extensively in Walter Lilly by Akenhead J in paragraphs 474 to 493 inclusive.
His Honour started with the very well-known statement on this topic in Crosby v Portland UDC (1967) 5 BLR 121 where Mr Justice Donaldson made the following statement,
They say that where you have a series of events which can be categorised as denial of possession of part of the site, suspension of work, and variations, the result is or may be that the contractor incurs the extra cost by way of overhead expenses and loss of productivity; these extra costs are all recoverable directly under clause 40 or clause 42 or indirectly under clauses 51 and 52…
Since, however, the extent of the extra cost incurred depends upon an extremely complex interaction between the consequences of the various denials, suspensions and variations, it may well be difficult or even impossible to make an accurate apportionment of the total extra cost between the several causative events. An artificial apportionment could of course have been made; and why, they ask, should the arbitrator make such an apportionment which has no basis in reality?
I can see no answer to this question. Extra costs are a factor common to all of these causes, and so long as the arbitrator does not make any award which contains a profit element, this being permissible under clauses 51 and 52 but not under clauses 41 and 42, and provided he ensures that there is no duplication, 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 those claims as a composite whole.
He then refers to London Borough of Merton v Stanley Hugh Leach (1985) 32 BLR 68 in which Mr Justice Vinelott dealt with this issue.
Vinelott J said that he found the reasoning of Mr Justice Donaldson to be “compelling” and went on to say,
If application is made… for reimbursement of direct loss or expense attributable to more than one head of claim and at the time when the loss or expense comes to be ascertained it is impracticable to disentangle or disintegrate the part directly attributable to each head of claim, then, provided of course that the contractor has not unreasonably delayed in the making the claim and so has himself created the difficulty, the architect must ascertain the global loss directly attributable to the two causes, disregarding, as in Crosby, any loss or expense, which would have been recoverable if the claim had been made under one head in isolation and which would not have been recoverable in the other head taken in isolation. To this extent the law supplements the contractual machinery which no longer works in the way in which it was intended to work so as to ensure that the contractor is not unfairly deprived of the benefit which the parties clearly intended he should have.
I think I should nonetheless say that it is implicit in the reasoning of Donaldson J, first that a rolled up award can only be made in the case where the loss or expense attributable to each head of claim cannot in reality be separated and secondly, as a rolled up award can only be made where apart from the practical impossibility the