What is a global claim?
A global claim may be defined as a claim where a global or composite sum is put forward as the measure of damages or contractual compensation where there are two or more separate matters of claim or complaint, and where it is said to be impractical or impossible to provide a breakdown or sub-division of the sum between those matters.
The concept of global claims provokes controversy and balancing the rights of the parties will continue to vex tribunals.
This balancing act was explained succinctly by HHJ Humphrey LLoyd QC in Bernhard’s Rugby Landscapes Ltd v Stockley Park Consortium Limited:
“Whilst a party is entitled to present its case as it thinks fit and it is not to be directed as to the method by which it is to plead or prove its claim whether on liability or quantum, a defendant on the other hand is entitled to know the case that it has to meet.” (Paragraph 136.1, judgment.)
That said, the case law suggests the courts are intent on doing justice, ensuring that employers pay no more than the amount for which they are properly liable and that contractors do not walk away empty handed simply because they have been unable to progress beyond making a global claim.
Why do people object to global claims?
I think there are three possible answers to this question. Global claims:
- Offend the generally accepted legal position as to what a contractor must prove in order to succeed with a claim, which can have the effect of reversing the burden of proof.
- Ignore other explanations of why an additional cost might have been incurred.
- Often fail to indicate the precise case to be met.
What are the requirements of a successful global claim?
I think there are six requirements for a successful global claim:
- The claim must be pleaded with sufficient particularity to enable the employer to know the case against it.
- All other contractual requirements for a valid claim must have been complied with.
- It must be impossible or impractical to separate out the consequences of each of the events.
- Any significant matters the employer is not responsible for must be eliminated.
- All parts of the claim where a causal link can be demonstrated must be pleaded separately.
- There must be sufficient evidence to support the losses claimed.
How can a global claim be defeated?
An employer could raise defences to the six requirements referred to above. It could also go into greater detail by demonstrating that:
- The interaction of events or breaches was not so complex as to render it impractical or impossible to separate out the consequences of the events. This will require a factual and logical analysis of the events.
- The employer is not responsible for a “significant cause” of the delay or loss, and that this was the dominant cause of the delay or loss.
What happens if a global claim is defeated?
Even if a global claim is defeated, the claim will not necessarily fail entirely. The tribunal may apportion part of the global claim to the events that it finds the employer is liable for, or find a causal link between an individual delay/loss and an individual event.
How can a contractor avoid having to make a global claim?
The answer to this is simple: by maintaining adequate records there will be no need to “lump” everything together.
