conditions which have to be satisfied but before an award can be made have been satisfied in relation to each head of claim.
He then refers to four decisions which deal explicitly with the difficulties of pleadings in these situations (Wharf Properties Limited v Eric Cumine Associates (1991) 52 BLR, Holland Construction & Engineering PTY Limited v Kvaerner RJ Brown PTY Limited (1996) 82 BLR 81, Bernhard’s Rugby Landscapes Limited v Stockley Park Consortium Limited 82, BLR 39, and John Doyle Construction Limited v Laing Management (Scotland) [2012] BLR 393) which address the need for clarity between the loss claimed and a causal nexus.
At paragraph 486 Akenhead J pulls together the relevant threads from all of the cases and, to paraphrase him, says it can properly be concluded as follows in relation to global or total cost claims:
a) Ultimately, claims by contractors for delay or disruption related loss or expense must be proved as a matter of fact. Plus the contractor has to demonstrate on a balance of probabilities that, first, events occurred which entitled it to loss or expense, secondly, that those events caused delay and/or disruption and thirdly that such delay or disruption caused it to incur loss and/or expense (or loss and damage as the case may be). I do not accept that, as a matter of principle, it has to be shown by a Claimant contractor that it is impossible to plead and prove cause an effect in the normal way or that such impossibility is not the fault of the party seeking to advance the global claim. One needs to see of course what the contractual clause relied upon says to see if there are contractual restrictions on global cost or lost claims. Absent and subject to such restrictions, the claimant contractor simply has to prove its case upon a balance of probabilities.
b) Clause 26 in this case lays down conditions precedent which, if not complied with, will bar to that extent claims under that clause. If and to the extent that those conditions are satisfied, there is nothing in clause 26 which states that the direct loss and/or expense cannot be ascertained by appropriate assessments.
c) It is open to contractors to prove the three elements with whatever evidence will satisfy the tribunal and the requisite standard of proof. There is no set way for contractors to prove these three elements… for instance, such a claim may be supported or even established by admission evidenced or by detailed factual evidence which precisely links reimbursable events with individual days or weeks of delay or with individual instances of disruption and which then demonstrates with precision to the nearest penny what that delay or disruption actually cost.
d) There is nothing in principal “wrong” with a “total” or “global” cost claim. However, there are added evidential difficulties (in many but not necessarily all cases) which a claimant contractor has to overcome... it will need to demonstrate that its accepted tender was sufficiently well priced that it would have made some net return. It will need to demonstrate in effect that there are no other matters which actually occurred (other than those relied upon in its pleaded case and which it has proved unlikely to have caused a loss). It is wrong, as Counsel suggested, that the burden of proof in some way transfers to the defending party...
e) The fact that one or a series of events or factors (unpleaded or which are the risk or fault of the Claimant contractor) caused or contributed (or cannot be proved not to have caused or contributed) to the total global loss does not necessarily mean that the claimant contractor can recover nothing. It depend on what the impact of those events or factors is. An example would be where, say, a contractor’s global loss is one million pounds and it can prove that but for one overlooked and unpriced £50,000.00 item. In its accepted tender it would probably have made a net return: