Civil Engineering Reference
In-Depth Information
his direct sub-contractors to the exclusion of expenditure through
nominated sub-contractors and suppliers.
From this total site cost, [Leach] deduct the assessment for fluctuations
which under clause 31A of the conditions are to be adjusted on a net
basis. A percentage for profit and overheads is then added to the total site
costs excluding fluctuations and finally the net fluctuations are added
back to arrive at the alleged remunerable total cost to the contractor of
£3,721,970.
If one could imagine a building contract which proceeded to comple-
tion without any hitch, delay or variation whatsoever this calculation
would provide [Leach] at line (5) with a direct comparison with his
tender figure. However as that ideal situation is rarely, if ever, met and
certainly was not met in the instant contract, the figures in line (1) (and so
those in lines (4) and (7) ) must include the costs to [Leach] of all the
'hitches' of whatever nature that occurred on the site.'
The judge commented on that in this way:
'I find it impossible to see how [this calculation] can be treated as even an
approximation for a claim, whether or not rolled up (as in
Crosby
), under
clause 11(6) or 24(1) [of JCT 63]. As the arbitrator points out in the
passage I have cited, the calculation in effect relieves Leach from the
burden of additional costs resulting from delays in respect of which
Leach is not entitled to any extension of the completion date.'
410
He might have added: and to any recovery of 'direct loss and/or expense'.
Claims such as that submitted by Leach (a claim in that case for a sum
well into seven figures and contained on one side of a sheet of A4 paper
albeit backed up with a vast mass of other material) are not uncommon.
Contractors are faced with difficult problems where the facts are truly
interconnected in such a complex way that to unravel them into the classic
approach of particularised cause and effect is impossible. On the other
hand, it is clearly inequitable if an employer responsible for just one occur-
rence giving rise to a delay, and for which a clear causal nexus can be
demonstrated, is more likely to be made to suffer the consequences than
an employer guilty of a large number of interconnected occurrences.
Despite the fact that the Judicial Committee of the Privy Council stated
quite categorically that the judgment involved no question of general im-
portance, the Privy Council decision in
Wharf Properties Ltd
v.
Eric Cumine
Associates
411
was seized upon by some commentators as ringing the death
knell on global claims. The case was brought against a firm of architects and
the question was whether the pleadings as presented by the plaintiffs
established an essential link between the breaches and the damages
claimed. It was asserted by the defendants that the pleadings disclosed no
reasonable cause of action or that they were so embarrassing as to warrant
them being struck out as an abuse of the court process. The committee held
410
(1985) 32 BLR 51 at 112 per Vinelott J.
411
(1991) 52 BLR 1.
