The global approach - Building Contract Claims - page 142

that, although the plaintiffs would face 'extraordinary evidential difficul-
ties', there were no grounds for saying that the pleadings disclosed no
reasonable cause of action, but they were an abuse of the process. The
most useful part of the decision is as follows:
' . . . the pleading is hopelessly embarrassing as it stands and their Lord-
ships are wholly unpersuaded by Counsel for Wharf's submission that
the two cases of J. Crosby and Sons v. Portland Urban District Council and
Merton v. Leach provide any basis for saying that an unparticularised
pleading in this form ought to be permitted to stand. Those cases estab-
lish no more than this, that in cases where the full extent of extra costs
incurred through delay depend upon a complex interaction between the
consequences of various events, so that it may be difficult to make an
accurate apportionment of the total extra costs, it may be proper for an
arbitrator to make individual financial awards in respect of claims which
can conveniently be dealt with in isolation and a supplementary award in
respect of the financial consequences of the remainder as a composite
whole. This has, however, no bearing upon the obligation of a plaintiff to
plead his case with such particularity as is sufficient to alert the opposite
party to the case which is going to be made against him at the trial. ECA
[Eric Cumine Associates] are concerned at this stage not so much with
quantification of the financial consequences - the point with which the
two cases referred to were concerned - but with the specification of the
factual consequences of the breaches pleaded in terms of periods of
delay. The failure even to attempt to specify any discernible nexus be-
tween the wrong alleged, and the consequent delay, provides, to use the
phrase of Counsel for ECA, ''no agenda'' for the trial.' 412
This decision does not overturn Crosby and Merton ; quite the reverse, it
upholds them. Essentially, it was the link between cause and effect - the
liability - with which the Privy Council was concerned. The decision
was followed in Mid Glamorgan County Council v. J. Devonald Williams &
Partner 413 although in that case the pleadings were not struck out on the
facts. There, the position was analysed as follows:
'56.1 A proper cause of action has to be pleaded.
56.2 Where specific events are relied upon as giving rise to a claim for
moneys under the contract then any preconditions which are made
applicable to such claims by the terms of the relevant contract will
have to be satisfied, and satisfied in respect of each of the causes of
events relied upon.
56.3 When it comes to quantum, whether time based or not, and
whether claimed under the contract or by way of damages, that
proper nexus should be pleaded which relates each event relied
upon to the money claimed.
412 (1991) 52 BLR 1 at 20 per Lord Oliver.
413 (1993) 8 Const LJ 61. See also Imperial Chemical Industries PLC v. Bovis Construction Ltd , GMW
Partnership and Oscar Faber Consulting Engineers (1992) 8 Const LJ 293.