Global claims in engineering and construction contracts

Student thesis: Doctoral Thesis

Abstract

In the UK over the last 50 years or so, legal developments in relation to extensions of time and/or monetary compensation for delays in construction projects, have been both cautious and incremental. In order to contend with the practical difficulties inherent in the construction industry, the courts have established various legal concepts and principles, not least those pertaining to claims which, given the often complex nature of construction projects, are evidentially difficult to prove; and where a myriad of events,which are both the employer and contractor responsibility, may have caused a composite loss and/or delay. The foregoing claims are commonly understood by the construction industry as being global in nature, the legal determination and assessment of which remains, to a degree intractable.In the last 20 years or so, there has been a growing perception in the construction industry that the UK courts are becoming more sympathetic towards global claims. This perception is evidenced in a revision made between the 1st and 2nd Editions of the Society of Construction Law’s Delay and Disruption Protocol, which has moved from global claims being 'rarely accepted by the courts' to 'an apparent trend for the courts to take a more lenient approach towards global claims'.This thesis examines the foregoing proposition by adopting an exhaustive, historical case based analysis of the UK case law relevant to global claims from its origins in the1960’s, until the present day. The doctrinal approach, including an in-depth analysis of authoritative literature on the subject, reveals that aside from a softening of judicial language and certain clarifications; the UK courts are not, in fact, taking a more lenient approach to global claims. The thesis also provides an updated and fresh perspective on various legal principles germane to the phenomena of global claims, such as the burden of proof, causation, contributory negligence, the dominant cause and apportionment.The research also identifies and explains certain jurisprudential disparities between the English and Scottish courts, in particular how causation is applied differently to global claims where competing causes are evident. In consequence, it is submitted that despite creative application of the law, the disparity in the judgements, north and south of the border may have inadvertently tightened the Gordian knot, the courts set out to untangle.In light of this complexity, the thesis also includes a framework with support diagrams,in order to assist a claimant in navigating its way around the preconditions required in order to maximise its chances of successfully pleading a claim which may include an element of globality.
Date of Award18 Dec 2019
Original languageEnglish
Awarding Institution
  • University Of Strathclyde
SupervisorAndrew Agapiou (Supervisor) & John Blackie (Supervisor)

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