Following the judicial pronouncements of the Judge in Charge of the Technology and Construction Court in the case of Walter Lilly & Co Ltd v Mackay and another (No 2) [2012] EWHC 1773, a view that has been gaining some adherents in the construction industry is that the case is purely a contractor's decision. This is understandable in the sense that the contractor won all of its arguments and was wholly successful on its claims for time and money as well as getting a thumping victory on the recovery of its costs too. The contractor's victory appears even more impressive when one appreciates some of the real difficulties it had in presenting a claim that was not incomprehensible. Furthermore, the contractor had successfully presented a 'global claim' (i.e. claim that simply attributed particular losses to groups of defaults by the employer without linking individual loss to each default) in a way which persuaded the court that it was not a global claim at all. Whilst the above is correct, it is suggested that it would be wrong to misread the careful decision of Mr Justice Akenhead as if it were some form of contractor's charter. The case was extreme and the facts were unusual making the outcome appear like a 'contractor's case' due principally to the employer losing on all contested evidential issues. However, the lengthy judgment also contains useful dicta for an employer to rely upon to defeat a contractor's 'global claim'. On closer analysis of the decision, it is clear that employers still have defences to such claims and the judge was careful to draw a balance between the interests of contractors and employers notwithstanding the one-sided result.

Please click here for a previous blog post on global claim issue, and here on concurrent delay issue.