Global Claims and Concurrency: Where Have We Got To And Where Are We Going?

I have linked the two topics of global claims and concurrency for two reasons. First, because the linkage was made in City Inn [2008] BLR 269 and [2010] BLR 473 between apportionment of losses in certain circumstances in global claims, in accordance with the decision in John Doyle Construction [2004] BLR 295, and entitlement to prolongation costs; secondly, because, in practice, questions of concurrency and global claims frequently arise from the same claim.

Two matters need emphasis: First, as ever, the express words of the contract must be examined with care. They may, but usually do not, provide an answer to the problems considered below. Secondly, the issue raised here is one of causation.

It is hardly surprising that it gives rise to difficulties, given that the Courts have consistently struggled with this concept. Thus the general view is that ultimately a decision on whether X caused Y depends on the court's common sense interpretation of the facts.

Part of the unspoken background to both global claims and questions of concurrency is the question of fairness. It is hard to avoid the general conclusion that if losses or delay have in part been caused by the employer's default, then to that extent the contractor should be recompensed or relieved from payment of liquidated damages, even if one cannot quite put one's finger on the precise extent to which the delay or losses were caused by that default.

Such an approach might be said to be fair and allows the decision-maker to weigh matters in the balance and arrive at a just result. If such an approach were followed, it might well reduce the time and cost of litigation, since critical-path analysis would be of less relevance and long, tedious explanations of what occurred on site would be avoided.

Of course, such an approach would make it difficult for an adviser to predict the outcome, since much would be left to the decisionmaker's discretion, but this is no different from an apportionment in tort or delict where loss is caused in part by the defendant and in part by the claimant.

In such cases, the court can reduce the claimant's recovery to the extent that it thinks it 'just and equitable' to do so as under the Law Reform (Contributory Negligence) Act 1945. Just as adjudication may provide rough justice, such an approach to global claims and concurrency may be welcome and appropriate, if it provides speedy and relatively inexpensive justice.

One can therefore understand the attraction of the City Inn solution, which enables the architect to grant an extension of time as he 'estimates to be fair and reasonable', which entitles him to apportion periods of concurrent delay as between the contractor and employer.

The law has been quite willing to adapt the strict requirements for proof of causation to particular circumstances. Thus a claimant can recover against either or both of two contract breakers, provided only that each of them was an effective cause of the loss: Heskell v Continental Express Ltd [1950] 1 All ER 1033. But for such a rule, both the contract breakers could blame the other as being the 'true' cause of the loss, thereby depriving the claimant of any remedy. Indeed, in Scots law, it is arguable that this exception is more extensive. Where two separate contract breakers cause 'one common result', they are jointly and severally liable to the pursuer: Grunwald v Hughes and Others (1965) SLT 209.

This is no different from the law in England. However, in the Scottish case of McGillivray v Davidson (1993) SLT 693, it appears to have been held that two such contract breakers could be sued on the basis of joint and several liability even though they did not both cause the whole damage claimed. The judge held that:

"The essence of joint and several liability is that each defender should be liable for the whole damage, but it does not follow from that that each defender's breach must have been a material cause of the whole damage."

In the context of tort, the rules as to causation appear to be even more flexible. Lord Hoffmann said in Kuwait Airways Corp v Iraq Airways Co. [2002] UKHL 19:

"There is therefore no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation. They are inextricably connected.

One is never simply liable; one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law as the rules which determine which acts give rise to liability. It is often said that causation is a question of fact. So it is, but so is the question of liability.

Liability involves applying the rules which determine whether an act is tortious to the facts of the case. Likewise, the question of causation is decided by applying the rules which lay down the causal requirements for that form of...