In July Mr Justice Akenhead provided a useful summary, with some new nuances, on the common law treatment of global claims. A 'global claim' or 'total cost claim' is a generic description of claims typically relating to delay and/or disruption events where the individual cause and effect for each issue is not demonstrated by the Claimant, but the alleged cumulative effect is claimed instead. They are rarely accepted by the courts because the Claimant has not presented a case on causation and in many cases there is no justification for the claim being advanced on a global basis.
The case of Walter Lilly & Company Limited v 1) Giles Patrick Cyril Mackay; 2) DMW Developments Limited confirms that claims advanced on a global basis are not automatically 'wrong' in principle and can still succeed if the circumstances merit it even, it seems, if a more comprehensive and detailed assessment could have been carried out to show individual cause and effect. The judgment provides a useful summary of the court's treatment of global claims to-date and refines them into a number of key points. The Claimant still has to prove the events occurred, that they led to delay and/or disruption and that in turn caused loss and there is no prescribed way to do so. The contract, by specific wording, can make it difficult or prevent global claims from succeeding. The burden of proof does not switch to the Defendant so there are evidential difficulties for the Claimant in proving the connection between the events. Elements of a claim that do not satisfy the requirements to succeed on a global basis can be cut away from the remainder without necessarily tainting it.
This will be seen by some as possibly opening the door slightly for global claims and it will be interesting to see the principles applied to future cases.
The case also provided a commentary on concurrency of delay events, which will be dealt with in a future blog.