Case Study

Considerations for Filing Global

Construction Claims: Legal Perspective
Farah Demachkieh 1; Salam Khalife 2; Mohamed-Asem Abdul-Malak, A.M.ASCE 3; and Farook Hamzeh 4
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Abstract: Delays and disruptions that frequently lead to cost overruns on, and late completion of, construction projects are often accom-
panied by claims for time extensions and/or additional compensations by construction contractors. To this effect, contractors’ claims can
become complex to an extent where it is difficult to relate losses incurred to individual events or causes and thereby establish grounds
for putting forward global claims. The foundation of this category of claims is that multiple claim-causing events, for which the owner
is responsible, have composite implications that render the determination of explicit individual cause-effect relations impossible or imprac-
ticable. As such, the aim of the work presented in this paper is to identify and synthesize the conditions that have contributed to making global
construction claims more admissible and potentially successful or that have hindered their success. The adopted research methodology
included (1) reviewing the literature regarding the main principles underlying global claims, (2) deducing the success and failure criteria
for such claims through a case law review of 26 industry-reported cases spanning the last five decades, (3) developing a construct synthesizing
the identified success and failure criteria and their interactions, and (4) pinpointing emergent trends that seem to be moderating the legal
admissibility and success requirements of these claims. The findings revealed six criteria that can be viewed as contributing to the success of
such claims, three of which mirror those found to be the basis for their failure. The emergent relaxation of requirements was found to be in
relation to three of the identified success criteria, pertaining to (1) the contractor not unreasonably delaying the claim, (2) impracticability
or impossibility to particularize, and (3) lack of the contractor’s responsibility for the added costs. DOI: 10.1061/(ASCE)LA.1943-
4170.0000393. © 2020 American Society of Civil Engineers.

Introduction
The construction industry has been tainted with dispute occurrence
between project participants, leading nowadays to various dispute
resolution strategies and mechanisms (Gebken and Gibson 2006;
Rajendran et al. 2013; Orgut et al. 2018). Construction projects
are exposed to enormous uncertainties and the contract is inevitably
incomplete in terms of including all the requirements needed to
tackle the various contingencies (Yiu and Cheung 2004). As such,
shared efforts are looked for in such circumstances to resolve the
complications that may arise during the course of work execution.
However, unsettled problems or conflicts, subsequently developing
into disputes and causing disruptions to construction schedules and
1
Ph.D. Graduate, Dept. of Civil and Environmental Engineering,
Maroun Semaan Faculty of Engineering and Architecture, American Univ.
of Beirut, Beirut 1107 2020, Lebanon. Email: fsd01@mail.aub.edu
2
Formerly, Ph.D. Student, Dept. of Civil and Environmental Engineer-
ing, Maroun Semaan Faculty of Engineering and Architecture, American
Univ. of Beirut, Beirut 1107 2020, Lebanon. ORCID: https://orcid.org
/0000-0003-1907-4547. Email: sgk19@mail.aub.edu
3 $12 billion or more (Gebken and Gibson 2006; McGeorge et al.
Professor of Construction Engineering and Management, Dept. of
Civil and Environmental Engineering, Maroun Semaan Faculty of Engi-
neering and Architecture, American Univ. of Beirut, Beirut 1107 2020,
Lebanon (corresponding author). ORCID: https://orcid.org/0000-0003
-3382-2257. Email: mamalak@aub.edu.lb
4
Associate Professor, Dept. of Civil and Environmental Engineering,
Hole School of Construction Engineering, Univ. of Alberta, Edmonton,
AB, Canada T6G 2R3. ORCID: https://orcid.org/0000-0002-3986-9534.
Email: hamzeh@ualberta.ca
Note. This manuscript was submitted on September 16, 2019; approved
on October 30, 2019; published online on March 17, 2020. Discussion per-
iod open until August 17, 2020; separate discussions must be submitted for
individual papers. This paper is part of the Journal of Legal Affairs and
Dispute Resolution in Engineering and Construction, © ASCE, ISSN
1943-4162.
increased project costs, are considered one of the most destructive
relationship killers in construction contracting (Yiu and Cheung
2004; Cheung and Pang 2012). When such disputes are not suitably
resolved, they may intensify and eventually get litigated, a process
that can be tremendously expensive for the parties concerned
(Cheung et al. 2004).
The American Institute of Architects (AIA), as cited by Levin
(1998), defined a claim as “a demand or assertion by one of the
contracting parties seeking, as a matter of right, adjustment or in-
terpretation of the contract terms, payment of money, extension of
time, or other relief with respect to the terms of a contract” (p. 35).
On the other hand, a dispute in construction projects arises when a
claim, submitted by a stakeholder (e.g., the contractor or subcontrac-
tor), has been opposed, prohibited, or disallowed by another stake-
holder (e.g., the project owner) (Mehany et al. 2018). Since disputes
emerge after claims are discredited, it is reasonable that the causes of
disputes are analogous to those of claims (Mehany et al. 2018). To
this end, the probability of claim and dispute occurrence ranges from
10% to 30% in the construction industry, and the average yearly
amounts paid to settle these claims and disputes vary from $4 to
2007). Accordingly, disputes are nowadays considered endemic
in the construction industry due to the poor resolution of claims
in the course of work execution, which justifies the exertion of ef-
forts by both parties to the construction contract that can be geared
toward diminishing the occurrence of claims (Ren et al. 2001).
For a loss and/or expense claim to be successful, the contractor
usually declares and proves three main issues: (1) one or more
events for which the defendant is accountable, (2) loss and expense
experienced by the claimant, and (3) a causal relationship between
the event(s) and their associated loss and expense [John Doyle
Construction Limited v. Laing Management (Scotland) Limited
(2004)]. Nevertheless, contractors’ claims are sometimes tremen-
dously complex, making it tough or intolerable to attribute every

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J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003

 item of loss to a distinct cause (Fawzy and El-Adaway 2015).
Contractors may then opt, using a generalized and global approach,
to file for a claim that reflects their total losses, with the purpose of
providing a measure of the experienced damages that are seen to be
the employer’s responsibility (Lord and Gray 2011). Accordingly,
global claims, established by contractors as a means for recovering
schedule delay and/or disruption-related costs, are viewed to re-
present a developing area of law (CMS Law-Now 2005; Knowles
2005). Contractors frequently attempt to file claims on a global
basis, as this method—apart from being easier, faster, and less ex-
pensive to formulate—helps them avoid the necessity to link an
individual loss to specific breaches of contract (CMS Law-Now
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2005).
In such claims, the claimant does not present proofs that can
separate the losses and connect them to specific events. As a sub-
stitute, the claimant adduces an assembly of events and a total sum
of losses and contends that the assembly produced the losses
(Chappell et al. 2008). However, due to stringent bureaucratic
rules relating to proceedings in the legal system, the courts have
historically viewed global claims with a great deal of doubt. The
main reason for this suspicion is that global claims, as commonly
pleaded, do not offer a suitable foundation for the claimant to com-
ply with the standards of proof, leading courts and arbitrators to
terminate global claims out of hand (CMS Law-Now 2005).
In practice, the Society of Construction Law (SCL) Delay and
Disruption Protocol (2002) defines global claims as follows: “A
global claim is one in which the Contractor seeks compensation
for a group of Employer Risk Events but does not or cannot dem-
onstrate a direct link between the loss incurred and the individual
Employer Risk Events” (p. 64). Similarly, Winter (2007) described
global claims as “claims where a sum, however calculated, is put
forward as the measure of damage or contractual compensation for
the loss or expense said to have been caused by two or more events”
(Winter 2007, p. 1). The relevant practice guide recommended by
the American Association of Cost Engineers (AACE) offers the fol-
lowing alternative description: “A whole series of events which
individually would form the basis of a claim for loss and expense
inter-react with each other in very complex ways, so that it becomes
very difficult, if not impossible, to identify what loss and expense
each event has caused” [AACE International Recommended Prac-
tice No. 10S-90 (AACE 2019)].
As defined by Haidar (2011), a global claim is a “delay and
disruption claim disguised” (p. 11). However, the difference be-
tween a global claim and a delay and disruption claim is that a
global claim is made for costs suffered as a result of delays and
disruptions evolving from several events whose implications have
an intricate interaction that makes specific relation between the
event and the time or money effects unachievable or unfeasible
(Haidar 2011). According to Lord and Gray (2011), a global claim
has more potential to be adopted by contractors as long as its analy-
sis is based on a reasonable and sound rationale. The cost of liti-
gating complex construction contracts can be decreased if global
claims can be “the norm rather than the exception,” on condition
that the claimant presents a cost-benefit study and, accordingly, the
court deduces that it is rational and defendable (Lord and Gray
2011). To this effect, the five requirements for a global claim to
be successful are as follows: (1) the claim must comply with all
contractual provisions, (2) the claim must be demonstrated as a
matter of fact, (3) evidence must be presented showing that the con-
tractor would not have suffered the loss in any event, (4) any sub-
stantial matters for which the employer is not accountable must be
removed, and (5) all components of the claim where a causal rela-
tionship can be established must be pleaded distinctly (Day QC and
Cope 2013).
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003
That said, the work presented in this paper has been motivated
by the need for determining what makes global claims submitted by
contractors admissible under the laws, with the purpose of inves-
tigating the circusmtances or criteria that on the one hand render
global claims more admissible and potentially successful, or that on
the other hand contribute to their failure.
Research Scope and Methodology
Delays and disruptions that often lead to cost overruns on, and late
completion of, construction projects are commonly accompanied
by claims for time extensions and/or additional payments by con-
struction contractors. As such, contractors are expected to establish
the causal link relating each item of loss with its individual causing
event or occurrence. While there are many difficulties facing con-
tractors in providing this type of thorough—and often tedious—
analysis, they resort to putting forward global claims as a result.
In this context, those claims may seem a simple approach to pro-
duce by a lax contractor; however, they can be very complicated to
construct and argue for. That is, contractors must be prepared to
deal with the multifaceted reasoning underlying the presentation
of a global claim in order to ensure its admissibility and improve
its chances of success.
That said, the aim of the work presented in this paper is to pro-
vide an in-depth analysis of the conditions that have contributed to
making global claims more admissible and potentially successful.
The adopted research methodology, fully illustrated in Fig. 1,
entailed (1) a review of the literature on the main principles under-
lying global claims and the objections expressed in relation to their
formulation and administration, (2) an examination of the success
and failure criteria associated with establishing the contractual
basis for global claims, as deduced from a case law review of
numerous industry-reported cases involving global claims, and
(3) proposing a construct delineating the interactions between
the criteria that are deduced as conducive to improving the plain-
tiff’s prospect of success when submitting a global claim and those
that may alternatively contribute to the failure of such claims.
The study’s conclusions should be of value to contractors
involved in advancing global construction claims by providing a
framework synthesizing the vital requirements for justifying the
legal admissibility of these claims and the methods adopted for
assessment of the quantum of their associated entitlements. The
ultimate application is intended to be one that supports and improve
the claimant’s prospects of success in filing a global claim and that,
if effeciently and corrrectly administrated, potentially leads to a
reduction in the costs of litigating such complex construction
disputes.
Global Claims Definition Revisited
Hudson (Reese 2010) defines global claims as follows: “A global
or composite sum, however computed, is put forward as the measure
of damages or of 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 claimed between those matters” (p. 151). The definition
by Haidar (2011) describes a global claim as “a global or composite
sum put forward or claimed as damages due to two or more separate
heads of claim or events, where it is alleged that it is impracticable or
impossible to provide a distinct sum claimed for each of the cause
and effect.” Furthermore, according to Furst and Ramsey (2015),
a global claim is “one that provides an inadequate explanation
of the causal nexus between the breaches of contract or relevant
05020003-2 J. Leg. Aff. Dispute Resolut. Eng. Constr.
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Fig. 1. Research methodology.

events/matters relied upon and the alleged loss and damage or delay
that relief is claimed for.” In the Australian context, and more par-
ticularly in Holland Construction & Engineering Pty Ltd. v.
Kvaerner RJ Brown Pty Ltd., Byrne J. defined the global claim
as follows: “The claim as pleaded : : : is a global claim, that is,
the claimant does not seek to attribute any specific loss to a specific
breach of contract, but is content to allege a composite loss as a result
of all the breaches alleged, or presumably as a result of such
breaches as are ultimately proved.” Likewise, in the commentary
on Wharf Properties v. Eric Cumine Associates, the editors define
global claims as “ones where the connections between the matters
complained of and their consequences, whether in terms of time or
money, are not fully spelled out.” All these definitions focus on one
important aspect in global claims: the nexus between the events and
the alleged entitlements, where the core issue lies in proving this
impracticable connection.
Some terms are frequently used together—or interchangeably—
with global claims, such as “composite claims,” “rolled-up claims,”
and “total cost claims.” Although these expressions may be
used interchangeably with “global claim,” some authors do distin-
guish them from one another. For instance, Atkinson (2007) differ-
entiates between “total cost,” “composite,” and “rolled-up” claims.
The term “total cost claim” is said to be “a claim where a single sum
is claimed which is the difference between the total actual cost and
the contract price : : : ” (paragraph 6.28). On the other hand,
“composite claim” and “rolled-up claim” are described as “claims
where there are a number of events and only some are presented as
a group in a global claim.” It is further clarified that “in this type of
claim, separate sums are claimed for particular events and a single
sum is claimed for the remaining group of events that are not so
particularised.”
Pivotal Changes Introduced by the 2017 SCL Delay
and Disruption Protocol
The SCL Delay and Disruption Protocol (SCL 2002) (hereafter
protocol) discourages parties from using global claims. It states,
“In what should only be rare cases where the financial consequen-
ces of the various causes of compensation are impossible to distin-
guish, so that an accurate apportionment of the compensation
claimed cannot be made between the several causative events, then
in this rare situation it is acceptable to quantify individually those
items of the claim which can be dealt with in isolation and claim
compensation for the remainder as a composite whole” (p. 27). This
edition of the protocol (2002) takes a tremendously strict approach

© ASCE 05020003-3 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003

 Fig. 2. Chronological distribution of the reviewed cases.
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regarding global claims, stricter possibly than the courts have ever
taken. In this regard, it asserts that “the not uncommon practice of
contractors making composite or global claims without substanti-
ating cause and effect is discouraged by the Protocol and rarely
accepted by the Courts.” It recommends, in fact, that if accurate
and adequate records are kept, the contractor can establish the
causal link between the employer’s risk event and the subsequent
loss and/or expense incurred without the need to file for a global
claim, and that the failure to keep such records does not defend the
contractor in submitting a global claim.
However, there is now a more lenient approach in courts toward
global claims. The introduced changes in the protocol mirror this
gradual cultural shift. Accordingly, the second edition of the pro-
tocol (2017) has tackled, among other issues, developments in case
law related to global claims. It thus states, “Some of the key
changes introduced by the 2nd edition are as follows: : : : .(e) There
is recognition of an apparent trend for the construction legal indus-
try and the courts to take a more lenient approach towards global
claims, albeit the risks of proceeding on this basis remain.” The
protocol also states that the contractor must be conscious that there
is a risk that a global claim will not succeed at trial if any substantial
contribution to the causality of the global damage can be proven to
have been made by an event for which the employer has no
accountability and it is not practicable for the contract administra-
tor, adjudicator, judge or arbitrator to weigh the value of that non-
recoverable portion on the existing evidence (SCL 2017).
Criteria for Success/Failure: Legal Perspective
Having established that a more lenient approach has been taking
place toward global claims by courts of law, this section exam-
ines, from a legal perspective, the criteria that can contribute to
improving the chances of success with submitted global claims or
lead to their failure. Global claims can be categorized, depending
on the award (i.e., time or money) that the contractor asks for,
into two main types: “total cost or loss and expense” and “delay
and disruption.” In the loss and expense claim, it is alleged that
numerous variations that cannot be disentangled are deemed to
have contributed to the project’s global cost overrun. The basic
claim will then be the difference between the contractor’s actual
costs incurred and the contract price, thus looking for a “cash-
neutral” position. In the global delay claim, it is assumed that the
project total delay is attributable to several instructions, varia-
tions, interferences, and disruptions that are claimed to be inter-
fering with the work and so entitle the contractor to an extension
of time and/or extra payment. Once more, there is no connection
between the individual alleged events and their contributions to
the total delay.
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003
As with many areas of the common law, the law related to global
claims has advanced through a number of cases, each of which has
required the court to find an impartial and reasonable equilibrium
between the practical difficulties regularly confronted by a wronged
claimant and the unquestionable right of a defendant to appropri-
ately recognize the case made against him [John Holland Construc-
tion & Engineering Pty Ltd v. Kvaerner RJ Bown Pty Ltd (1996);
also, Wharf Properties v. Eric Cumine Associates (1991)]. Accord-
ingly, this section of the research work does not aim to offer a
historical scrutiny of the advancement of the law on global claims.
Rather, it strives to provide a study of important cases encoun-
tered mainly under the common law legal systems of the United
Kingdom, Australia and other Commonwealth countries, and the
United States. A total of 26 cases were adopted for the analysis,
following a systematic search effort that yielded two primary sets
of 13 and 11 cases in which the global claim is found to have either
succeeded or failed, respectively. The remaining two cases re-
present a main shift in legal analyses of global claims, which can
be regarded as reflecting a more tolerant view of contractors pursu-
ing such claims. A number of search engines were relied upon in
this regard, including Google Scholar, BAILII, FindLaw, Fenwick
Elliot, and the like. The search resulted in filtering a total number of
26 related cases, arranged according to their year of decision, as
shown in Fig. 2. Accordingly, the adopted cases were thoroughly
examined, and key statements made in support of the courts’ rul-
ings were properly scrutinized and filtered, thereby highlighting the
core reasoning behind the decisions given by the concerned courts.
Criteria Pertaining to the Success of Global Claims
This section presents research findings concerned with the identi-
fication of essential criteria contributing to the success of global
claims. Based on the in-depth review of the filtered 13 cases sum-
marized in Table 1, the frequencies associated with the reported
success criteria (SCs) were of main interest. To this end, a thorough
review and inspection of all encountered criteria allowed their clas-
sification into general headings that offer a clearer representation of
what is reported to be critical to the success of global claims. Table 2
lists the six generated headings along with their corresponding
frequencies.
The listed headings are presented in decreasing order of occur-
rence frequency. The adopted heading “Impracticable or impossible
to particularize (i.e., establish the causal nexus between each event
and the attributed loss),” SC1, was found to have the highest cita-
tion frequency of 11, thus confirming the exceptional implication of
satisfying this criterion if with global claims are to be successful.
SC1 is a vital condition or prerequisite for a contractor to demon-
strate that it is impossible or impractical to disentangle the part
of the loss attributable to each head of claim in order to succeed
05020003-4 J. Leg. Aff. Dispute Resolut. Eng. Constr.
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Table 1. Summary of successful global claims cases
Case code Case name
© ASCE
C1 J. Crosby & Sons Ltd.
v. Portland Urban & District
Council (1967)
C2 London Borough of Merton
v. Stanley Hugh Leach (1985)
C3 Mid Glamorgan County
Council v. J Devonald Williams
(1991)
C4 Servidone Construction
Corporation v. the United
States (1991)
C5 Matthew Hall v. Nauru
Phosphate Royalties (1992)
C6 Imperial Chemical Industries
plc v. Bovis Construction Ltd.
(1992)
C7 GMTC Tools & Equipment Ltd
v. Yuasa Warwick Machinery
05020003-5
Ltd (1994)
C8 British Airways Pension
Trustees v. Sir Robert McAlpine
& Sons Ltd. (1994)
C9 Inserco Ltd v. Honeywell
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003
Control Systems (1996)
C10 Bernhards Rugby Landscapes
Ltd. v. Stockley Park
Consortium Ltd (1997)
C11 How Engineering Services Ltd
v. Linder Ceilings and
Partitions plc (1999)
J. Leg. Aff. Dispute Resolut. Eng. Constr.
Courts’ citation
“The result in terms of delay and disorganization, of each of the matters referred to : : : was a continuing one. As each matter occurred its consequences were
added to the cumulative consequences of the matters which had preceded it. The delay and disorganization which ultimately resulted was cumulative and
attributable to the combined effect of all these matters. It is therefore impracticable, if not impossible, to assess the additional expense caused by delay and
disorganization due to any one of these matters in isolation from the other matters. : : : I can see no reason why [the arbitrator] should not recognize the
realities of the situation and make individual awards in respect of those parts of individual items of claim which can be dealt with in isolation and a
supplementary award in respect of the remainder of these claims as a composite whole.”
“ : : : that a rolled-up award can only be made in a case where the loss or expense attributable to each head of claim cannot in reality be separated and secondly
that a rolled-up award can only be made where apart from that practical impossibility the conditions which have to be satisfied before an award can be made
have been satisfied in relation to each head of claim. : : : If application is made : : : for reimbursement of direct loss and expense attributable to more than one
head of claim and at the time when the loss or expense comes to be ascertained, it is impractical to disentangle or disintegrate the part directly attributable to
each head of claim then, provided of course that the contractor has not unreasonably delayed in making the claim and so has himself created the
difficulty, the architect must ascertain the global loss attributable to the two causes : : : ”
“ : : : Where however a claim is made for extra costs incurred through a delay as a result of various events whose consequences have a complex interaction that
renders specific relation between event and time/money consequence impossible or impracticable, it is permissible to maintain a composite claim.”
“ : : : presented evidence under the total cost method. Servidone, 19 Cl.Ct. at 384. Under this method, the contractor must show: (1) the impracticability of
proving actual losses directly; (2) the reasonableness of its bid; (3) the reasonableness of its actual costs; and (4) lack of responsibility for the added costs.”
“Matthew Hall : : : is not obliged to give particulars of “nexus” when it is not part of its case to establish a nexus between each alleged disrupting event,
particular disruptions and loss.”
“The objectives sought to be achieved by the Court in orders made relating to Scott Schedules are to ensure that when the action is entered for trial: each
individual item claimed is particularised : : : the amount asserted by both parties : : : the contentions of each parties [sic] : : : areas of agreement relating
to the description of the item and quantum : : : the aggregate of the claims and areas of admissions of each party are known.”
“I have come to the clear conclusion that the plaintiff should be permitted to formulate their claims for damages as they wish, and not to be forced into a
straitjacket of the judge’s or their opponent’s choosing. The fundamental concern of the court is that the dispute between the parties should be determined
expeditiously and economically and, above all, fairly, and while a plaintiff is entitled to present its claim as it thinks fit, on the other hand a defendant is entitled to
know the case which it has to meet with as much certainty and particularity as is reasonable, having regard to the circumstances and to the nature of the acts
themselves by which the damage is done.”
“The basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to
answer it. : : : This is again not a case in which it could be said that the plaintiff’s claims were fundamentally flawed, in the sense that no further particulars
could assist their cause, nor a case where (as in Wharf Properties v. Eric Cumine) there had been an express refusal to provide further particulars or a
contumelious disregard of court orders : : : the default of the plaintiffs, serious though it was, fell far short of calling for the draconian remedy of striking
them out.”
“Inserco pleaded case provided sufficient agenda for the trial and the issues for the trial and the issues are about quantification. : : : There is here as in Crosby an
extremely complex interaction between the consequences of the various breaches, variations and additional works and in my judgment it is impossible to
make an accurate apportionment of the total extra cost between the several causative events. I do not think that even an artificial apportionment could be
made—it would certainly be extremely contrived—even in relation to the few occasions where figures could be put on time etc. It is not possible to disentangle
the various elements of Inserco claims from each other. In my view the cases show that it is legitimate to make a global award of a sum of money in the
circumstances of this somewhat unusual case which will encompass the total costs recoverable under the February agreement, the effect of the various breaches
which would be recoverable as damages or which entitle Inserco to have their total cost assessed to take account of such circumstances and the reasonable value
of the additional works similarly so assessed.”
“What is sufficient particularity is a matter of fact and degree in each case, with a balance being struck between excessive particularity and basic information.
The approach must also be cost effective. : : : the causal connection between the matters complained of and their consequences, whether in terms of time or
money, are not fully spelt out, but, implicitly, could and should be spelled out.”
“In my view it is unhelpful to distinguish between the degree of judgment permissible in an ascertainment of loss from that which may properly be
brought to bear in an assessment of damages. A judge or arbitrator who assesses damages for breach of contract will endeavour to calculate a figure as
precisely as it is possible to do on the material before him or her. In some cases, the facts are clear, and there is only one possible answer. In others, the facts are
less clear, and different tribunals would reach different conclusions : : : There is no place for pure speculation in the ascertainment of loss or expense, any
more than there is in the assessment of damages.”
 “The defendant submitted that the type of claim put forward by it in its application is not a novel one. It was submitted that it was an extremely common, simple

“It will be apparent that I have rejected the pursuers’ argument that, if prolongation costs are caused both by an employer delay and by a concurrent

seems to be based on a rigidly logical application of the principles of causation as they apply in the general law of contract and delict. Under clause 26, however, as
contractor delay, the contractor will not be entitled to recover such costs if he would have incurred them as a result of the contractor delay. That approach
with a global claim. As such, there is no nexus shown or proved by

with clause 25, I am of opinion that such an approach is not appropriate; instead, the direct loss and expense sustained by the contractor should be
the claimant between the individual events and their respective con-
sequences, whether in terms of time or money requested. Awards
given on a global basis in Case C1 have been supported in the con-
text of “an extremely complex interaction [ : : : where] it may be
difficult or even impossible to make an accurate apportionment
way of putting forward a claim for loss and expense in circumstances where it is difficult to link each item to a particular breach.”

of the total extra cost between the several causative events.” In

apportioned between the events for which the employer is responsible and the events for which the contractor is responsible.”
Case C2, the judge stated that, in a global claim, the “loss or ex-
pense attributable to each head of claim cannot in reality be sep-
arated.” In Case C10, the court deduced that the defendant’s
breaches instigated the additional cost or cost overrun and the
causal link was inferred rather than proved. Similarly, the court’s
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judgment in eight other cases ascertained that this was the case.
However, it should not be overlooked that, at trial, the claimant
must prove his case and that there is a significant difference be-
tween a global claim as a matter of pleading and such claim as
a matter of evidence, as cited in Case C8.
As a second criterion for a successful global claim, the claimant
(i.e., contractor) must secure the necessary evidence and particulars
in order to (1) prove the losses claimed (C6) and (2) enable the
defendant (i.e., employer) to recognize what case is being made
against him in adequate details (C8 and C9). The onus of demon-
Courts’ citation

strating the case remains with the plaintiff, and the evidential bur-
den of proof should not be basically transferred to the respondent.
To this end, the apparently absolute requirement of “impossibility”
might be integrated with a responsibility to use adequate and suf-
ficient particularity (SC2) by the claimant. Accordingly, the fragile
nature of a global claim is a strong incentive to keep adequate re-
cords as a standard practice; the more that can be demonstrated
by submitting sufficient records and documents, the more vigorous
the global claim, as in Cases C7 and C10. In Cases C6 and C8, the
courts balanced the needs of the plaintiff to submit further and
better particulars with the purpose of assisting the defendant in
understanding the case that to be answered. For instance, the plain-
tiff’s claim in Case C8 was recognized by the court as utterly
flawed in failing to particularize the claim basis; however, it was
permitted to proceed with additional and better particulars having
been requested.
Additionally, the claimant has to prove, based on a balance of
probabilities, that the actual costs would not have been incurred in
any other event or incident (SC3). This is done by demonstrating
(1) that the contractor’s accepted tender was adequately well-
Note: Bold denotes text in support of global claim success criteria.

estimated and not exceptionally underpriced; (2) that the contractor

incurred the loss due to the employer’s risk events or that the con-
tractor’s risk events during work execution did not cause the loss
(i.e., deficient supervision, poor cost control, labor and material
shortage, ineffective management, etc.); and (3) that it would have
produced a certain margin of profit (Cope 2012). To this effect,
even where global claims are strengthened by proof of breaches
Engineering Pty Limited (2006)

of contract or other strong explanations that entitle the contractor

Shell Refining (Australia) Pty

to compensation, there may be other possible reasons for the cost

City Inn Ltd v. Shepherd
Construction Ltd (2007)

overrun (e.g., underpricing in the original bid price, as in Case C4).

Case name

To prove the amount of injury in Case C4, Servidone (the plaintiff

Limited v. A J Mayr

in the case) provided evidence under the total cost method. Using
this method, the contractor must show (1) the impracticability of
proving actual losses directly (SC1); (2) the reasonableness of
Table 1. (Continued.)

its bid (SC5); (3) the reasonableness of its actual costs (SC3);
and (4) lack of responsibility for the added costs (SC6). The claim-
ant computes the damages as the difference between the actual
costs and the contract price submitted in his bid. However, the court
Case code

deduced that Servidone’s bid was not realistic. Therefore, it

adopted the modified total cost method and “substituted a reason-
C12

C13

able bid amount for Servidone’s original estimate” (Haidar 2011,

© ASCE 05020003-6 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003

 Frequency of success
p. 191) in order to compensate for Servidone’s unreasonably

criteria per case

low bid.
For the contractor to succeed in a global claim, it is required

27
1
2
1
5
2
2
4
1
2
2
2
1
2
to present evidence and submit adequate particularity with a
detachment of those events that may be the reason behind the in-
efficiencies in the plaintiff’s submitted claim, unreasonable tender
costs, or events that are the liability of neither of the disputing par-
ties. It follows that any cause of loss would not be the responsibility
Lack of contractor’s

of the claimant in order for the global claim to succeed (SC6).

responsibility for

Therefore, besides the practical impossibility of separating losses

added costs
(SC6)

between causes, the contractor must prove that all the events com-
—
—
—

—
—
—
—
—
—
—
—
—
p

1
plained about are the fault of the respondent (SC6). In other words,
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it must be clearly demonstrated that the employer is responsible for

all these events. As in Case C4, the claimant had proven that it did
not contribute to any marked degree to added costs or expenses,
nor include in its claim any other events for which the defendant
contractor’s bid price
Reasonableness of

was not liable. Thus, the contractor had been able to prove having
no responsibility for the added costs before the global award
(SC5)

was made.
—
—
—

—
—
—
—
—
—
—
—
—
p

1 In addition, for a global claim to be accepted, the contractor

must not have unreasonably delayed making the claim, thereby cre-
ating the difficulty or impossibility of proving disentanglement.
The effect of such conduct by the contractor on the success of a
global claim case is manifested by SC4 (Table 2). In that respect,
himself creating difficulty

it could be reasoned that the underlying basis of the failure of global

delaying claim and/or

claims is not always a matter of principle but can be a “procedural

Contractor not
unreasonably

failure and a matter of conduct of the claimant” (Lord and Gray

(SC4)

2011, p. 232). Such conduct of the claimant is, for instance, high-
—

—
—

—
—
—
—
—
p

p
4

lighted in Case C2, where the judge stated “ : : : provided that the
contractor has not unreasonably delayed the making of the claim
and so has himself created difficulty the architect must ascertain the
global loss directly attributable to the two causes : : : ”
Reasonableness of
contractor’s actual

Criteria Pertaining to the Failure of Global Claims

incurred costs
(SC3)

Similar to the analysis performed previously, this part of the paper

—
—
—

—
—
p

p
p

presents findings of the careful scrutiny of the 11 cases that are

summarized in Table 3, in which global claims failed to succeed
in courts. Three failure criteria (FCs) were deduced as a result
of the review, and they are presented in Table 4, along with their
respective frequencies of occurrence. The first criterion found to be
between excessive particularity

impeding the success of global claims is the failure to plead the case
particularity (i.e., balance

and basic information)

Sufficient or adequate

with sufficient or adequate particularity and facts (FC1). This issue

was recorded in eight cases as shown in Table 4, thus proving its
Table 2. Success criteria as deduced from the examined cases

vital impact in global claim cases. The main reason courts consider
(SC2)
—
—
—
—

—
—
—
p
p
p
p

this criterion sensitive to a global claim case is the need to “alert the
5

opposite party” with sufficient details to assess and know exactly its
position in the case being made against it (Case C15). In Case 16,
the judge asserted that global claims are difficult to handle, and
giving particulars, or justifying the inability to do so, is important
to reduce the extent of argument and help in managing the litiga-
tion. Additionally, in Case 17, the judge further explained the need
to particularize (i.e., establish

event and the attributed loss)

Impracticable or impossible

causal nexus between each

for sufficient particularity in such claims in order to enable the

judge to (1) address the issues, (2) rule on relevance, and (3) restrict
the parties to those issues.
The considered cases revealed several examples of the lack of
(SC1)

11
p
p
p
p
p

p
p
p
p
p

sufficient particularity. In Case C19, a justifiable complaint of lack

of particularity was recorded, and after requesting the plaintiff to
tackle this issue, the submitted materials were investigated. The
results showed instances of repetitions, compensations having al-
ready been granted elsewhere, and—again—a general lack of par-
ticularization. Other examples of the lack of particularization are
(1) inability to quantify the effect of disruption (Case C18), (2) in-
Total
Case
code

C10
C11
C12
C13
C1
C2
C3
C4
C5
C6
C7
C8
C9

ability to verify the exact amount of the plaintiff’s profit on the

© ASCE 05020003-7 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003

 Downloaded from ascelibrary.org by Western Sydney University Library on 03/21/20. Copyright ASCE. For personal use only; all rights reserved.
Table 3. Summary of failure cases related to global claims
Case code Case name
© ASCE
C14 Lichter v. Mellon Stuart
Company (1962)
C15 Wharf Properties v. Eric
Cumine Associates (1991)
C16 Nauru Phosphate Royalties
Trust v. Matthew Hall
Mechanical & Electrical
Engineering Pty Ltd (1994)
C17 John Holland Construction
& Engineering Pty Ltd
v. Kvaerner RJ Bown Pty
Ltd (1996)
05020003-8
C18 Shimizu Corporation Ltd
v. Attorney General (1996)
C19 Amec Building Ltd. v.
Cadmus Investment Co Ltd.
(1997)
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003
C20 Jackson Construction Co.,
Inc. v. the United States
(2004)
C21 London Underground Ltd
v. Citylink
Telecommunications Ltd
(2007)
J. Leg. Aff. Dispute Resolut. Eng. Constr.
Courts’ citation
“Once it had thus been established that only part of the claim represented extra cost chargeable to Mellon, the one question remaining was whether a reasonable
allocation of part of the total sum was possible. The court undertook such an allocation, guided by evidence concerning the extra time required for the
performance of the stone contract as the result of the improper shelf angles. We cannot say that this was an arbitrary method of allocation. Indeed, the plaintiff is
not in position to complain that the allocation was imprecise since it bore the burden of proving how much of the extra cost resulted from Mellon’s improper
conduct. The plaintiff risked the loss of its entire claim, as occurred with reference to the masonry contract, if the court should not have been able to make a
reasonable allocation.”
“The pleading is hopelessly embarrassing as it stands. : : : The failure even to attempt to specify any discernable nexus between the wrong alleged and the
consequent delay provides, to use Mr Thomas’s [counsel for the defendants] phrase, “no agenda for the trial. : : : This has, however, no bearing upon the
obligation of a plaintiff to plead his case with such particularity as is sufficient to alert the opposite party to the case which is going to be made against him at
the trial. : : : This claim is advanced not only without any specification of the causal connection between the breaches and the sums claimed but without any
facts which will enable the defendant to ascertain which parts of these sums are being alleged to be attributable to the breaches alleged.”
“Global claims are difficult for the parties and the court to handle. To compel a plaintiff to give particulars of nexus or justify its inability to do so may reveal the
bogus claim. If particulars are produced they may clarify issues and reduce the area of argument even if the plaintiff can only provide alternative hypothesis. I can
see no reason why, for example, a judge controlling a building case list or arbitrator could not require the plaintiff to particularise the nexus or to justify its
assertion that it is not possible to do so. Such directions would be justifiable upon the grounds that they would assist in the management of the litigation. The
issue raised here for decision is whether there is an abuse of process arising from the globally pleaded claim. I consider that, in all the circumstances, there is not.”
“In my opinion, the court should approach a total cost claim with a great deal of caution, even distrust. It would not, however, elevate this suspicion to the level
of concluding that such a claim should be treated as prima facie bad : : : Nevertheless, the point of logical weakness inherent in such claims, the causal nexus
between the wrongful acts or omissions of the defendant and the loss of the plaintiff, must be addressed. : : : the court should be assiduous in pressing the
plaintiff to set out this nexus with sufficient particularity to enable the defendant to know exactly what is the case it is required to meet : : : . And it should not
be overlooked that an important means of achieving the result that, once it starts, the trial should be conducted without undue prejudice, embarrassment and delay,
is by ensuring that, when it begins, the issues between the parties including this nexus are defined with sufficient particularity to enable the trial judge to address
the issues, to rule on relevance and generally to contain the parties to those issues : : : . And if, in such a case, the plaintiff fails to demonstrate this causal nexus in
sufficient detail because it is unable or unwilling to do so, then this may provide the occasion for the court to relieve the defendant of the unreasonable burden
which the plaintiff would impose on it : : : ”
“I am satisfied that Shimizu did suffer some disruption to the Tower, in particular delay to the construction of [stair drum 2] : : : . but that it ceased, or should have
ceased, to have effect by L6 : : : I am unable to quantify the effect of disruption to stair drums to L6 and I do not think that in the circumstances it is encumbent
[sic] upon me to estimate a figure for disruption : : : when the Tower disruption claim is presented as a global claim. Accordingly the disruption claim for the
Tower fails.”
“Certainly, it seems to me that there is no substance in the complaint that the arbitrator had set his face against global claims and that, thereby, prejudiced Amec.
What appears to have happened, is that, upon justifiable complaint of lack of particularity, the arbitrator insisted upon an allocation of the overall claim to
particular heads which was attempted by Amec and, when these matters were investigated by the accountants and in evidence and cross-examination, it clearly
became quite clear to the arbitrator that there were occasions of duplications, matters compensated elsewhere and a general lack of particularization. In those
circumstances, it seems to be what the arbitrator concluded that the plaintiff had not proved the costs incurred were due to the faults by Cadmus. : : : As is clear
from the careful judgment of the arbitrator, he proceeded to analyse each of the claims made by Amec and decided each upon the evidence that was before him.”
“The Court is unable to verify the exact amount of Jackson’s profit on the Contract because the job cost report upon which Jackson relied at trial, which was dated
September 6, 1994, was not its final job cost report for the Contract : : : . This job cost report contained several estimates for expected profit as well as cost
allowances for a small portion of unfinished work. Jackson’s failure to prove its actual costs provides the Court with another reason to reject Jackson’s total
cost claim.”
“ : : : . The rigour of that anaylsis is in my view mitigated by two considerations. The first of these is that while, in the circumstances outlined, the global claim as
such will fail, it does not follow that no claim will succeed. The fact that the pursuer has been driven (or chosen) to advance a global claim because of the
difficulty of relating each causative event to an individual sum of loss or expense does not mean that after evidence has been led it will remain impossible to
attribute individual sums of loss or expense to individual causative events. The point is illustrated in certain of the American cases. The global claim may fail, but
there may be in the evidence a sufficient basis to find causal connections between individual losses and individual events, or to make a rational apportionment of
part of the global loss to the causative events for which the defender has been held responsible. The second factor mitigating the rigour of the logic of global
claims is that causation must be treated as a common sense matter : : : that is particularly important, in my view, where averments are made attributing, for
example, the same period of delay to more than one cause.”
 course of the arbitration. : : : This aspect of the claim cannot succeed. I do not consider any basis has been established to remit the claim to the arbitrator. I cannot

“ : : : it will be the rare case indeed where no overrun cost beyond the contract price and no time overrun beyond the contract period is due to an act or omission

H&M specifically disavowed any attempt to demonstrate a causal link between any particular act of disruption, delay or prevention on the one hand and
“[The arbitrator] warned himself that if a global claim was to succeed whether or not it is the total claim, the contractor must eliminate from the causes of his loss
and expense all matters that are not the responsibility of the employer. It is clear that he concluded that this is precisely what S.J.W. had failed to do in the

find that there was any procedural mishap. If the arbitrator committed an error I do not consider it comes within the realm of those which would justify the removal

for which the contractor is responsible. : : : a global claim must fail if any part of the extra cost or time is the responsibility of the contractor. Thus, the
“ : : : It would not be fair to Petrobras, nor a practical way of the court proceeding, if Petromec were not required to give adequate particulars of their claim. : : :

claimant must show that the whole of the overrun is the consequence of the compensable events for which the proprietor is contractually responsible. : : :
contract due to the plaintiff’s failure to prove its actual costs
(Case C20), (3) inability to prove the reasonableness of the total
expended hours and attribution of the additionally incurred hours
only to the events of disruption relied on (Case C24), and (4) pro-
viding the court what it considered to be a small number of docu-
ments (Case C22). As for this last example, it was stated
in Case C22 that providing insufficient documents to the court
“would not be fair to [defendant], nor a practical way of the court
proceeding.”
The second criterion hindering the success of global claims is
the failure to (1) eliminate from the causes of the plaintiff’s loss and
expenses those matters that were not the responsibility of the
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defendant, or (2) prove that the costs incurred were the defendant’s
fault (Case C19). In such cases, the claim would be infeasible un-
less the plaintiff could reasonably make rational apportionment
such that a part of the total sum is allocated, and only for which
the defendant is responsible (Cases C14 and C21). Accordingly, the
plaintiff is thought to bear the burden of proving how much of the
extra cost indeed resulted from the defendant’s improper conduct
of an arbitrator for misconduct. The central factual contention relied on by the plaintiff fails.”

(Case C14). In this manner, the judge stressed the importance of

providing evidence of the responsibility of the defendant by stating
that “a global claim must fail if any part of the extra cost or time is
Courts’ citation

the responsibility of the contractor” (Case C24). Another statement

by the judge in Case 24 emphasized the necessity to remove any
cause that is not the responsibility of the defendant by reiterating
the arbitrator’s conclusion that “if a global claim was to succeed
The court has been provided with a small number of documents only.”

whether or not it is a total claim, the contractor must eliminate from

the causes of his loss and expense all matters that are not the
responsibility of the employer” (Case C23). Therefore, the use
of “must” in both statements of the two cases underlines the plain-
tiff’s obligation to provide this proof.
The third failure criterion is the failure (or even the failure to
attempt) to specify any discernable nexus between the wrong al-
leged and the attributed loss. This issue was recorded in five cases
as shown in Table 4. In Cases C15 and C17, the plaintiff failed to
even attempt, or was not willing, to demonstrate the causal nexus;
any specific additional cost on the other.”

the court indicated that there was thus “no agenda for the trial.”
The nexus in global claim cases must be treated as a common-sense
requirement, as directed in Case C21: “That is particularly impor-
tant, in my view, where averments are made attributing, for exam-
ple, the same period of delay to more than one cause.”

Reemergence of Global Claims

Note: Bold denotes text in support of global claim failure criteria.

The previous section tackled the review and analysis of 24 cases in

which global claims succeeded or failed because of a number of
inferred criteria. This section involves the examination of two addi-
tional cases that can be regarded as representing a main shift in
legal analyses of global claims, one that advocates a more tolerant
stance for those pursuing these types of claims.
Brasileiro S.A. Petrobras &

Bowen Construction Ltd &

Petromec Inc v. Petroleo

John Doyle Construction Limited v. Laing Management

S.J.W. Facades Ltd v.

Construction v. Laing
H&M Engineering &

Construction (2011)

(Scotland) Limited (2004)

O’Rourke Australia
Case name

The judgment in John Doyle Construction Limited v. Laing Man-

others (2007)

Anor (2009)

agement (Scotland) Limited (2004) represented a major change in

the legal stance toward global claims, espousing a much more le-
Table 3. (Continued.)

nient approach. Laing Management was the management contrac-

tor for the construction of a new corporate headquarters for Scottish
Widows in Edinburgh. Several work packages related to the super-
structure were contracted out to John Doyle. A global claim was
Case code

filed by John Doyle seeking a 22-week extension of time and

£4.8 million for losses and expenses. Doyle admitted that, in spite
C22

C23

C24

of its extreme efforts, it was impossible to establish the nexus of

© ASCE 05020003-9 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003

 Table 4. Failure criteria as deduced from the examined cases
Failure to eliminate from
Failure to plead case with causes of loss and expenses Failure “even to attempt” to
sufficient or adequate all matters not responsibility specify discernable nexus
particularity and facts of defendant or failure to prove (i.e., establish causal nexus between
(i.e., inability to quantify effect costs incurred were due to wrong alleged and attributed loss—sums
of disruption, etc.) faults by defendanta or delay—in common senseb
Frequency of failure
Case code (FC1) (FC2) (FC3) criteria per case
p
C14 —
p p —
p 1
C15 p 3
C16 p — —
p 1
C17 — 2
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p
C18 p —
p — 1
C19 p
a
—
p 2
C20 —
p pb 2
C21 —
p 2
C22 —
p — 1
C23 —
p p —
p 1
C24 3
Total 8 6 5 19
a
This denotes the wording adopted in C19.
b
This denotes the wording adopted in C21.

each event causing the delay and disruption, and that was why the
claim had been submitted on a global basis. The reasoning adopted
by Laing was that all extra costs allegedly incurred by John Doyle
needed to have been due to the delay and disruption caused by the
defendant (i.e., Laing). Subsequently, if one of the events claimed
by Doyle had proven not to have been caused by Laing, the case
would have failed. The court confirmed that there is no problem
with submitting a global claim if there exists a large number of
interrelating events and the loss linked to each of these events can-
not be proven. As long as John Doyle could determine or prove
those events, the accountability of Laing for each of them, their
contribution to the global loss, and the method for computing
the loss incurred, the claim would be successful.
The decision of the Inner House in Doyle v. Laing is a signifi-
cant reassessment of the judicial approach to global claims, and
thus includes three main changes of emphasis in the law, each of
which provides an inducement to the pursuit of these types of
claims, as follows:
• Whereas previously it was confirmed that any cause of loss pro-
ven not to be the fault of the respondent would be deadly to the
global claim (SC6 or FC2), it seems now that this is only valid if
the cause of the damage is dominant or overriding. In other
words, the employer must show that the cause of the alleged
delay and/or loss not its liability is significant in order for
the global claim to fail. That said, even where the loss has been
caused both by events for which the employer is accountable
and by others for which the employer is not, the global claim
can still be successful if those for which the employer is liable
are the main cause of loss: “If an event or events for which the
employer is responsible can be described as the dominant cause
of an item of loss, that will be sufficient to establish liability,
notwithstanding the existence of other causes that are to some
degree at least concurrent : : : ”
• In cases where it is not feasible to recognize the dominant cause
of the loss, and the causes of damages are actually concurrent, a
global claim may partly succeed. Accordingly, it may be pos-
sible for the court to apportion liability for the loss amid those
events for which the defendant is liable and other events. In this
way, the contractor is awarded a part of the claimed award, even
if rough and not very accurate computations are produced: “In
the third place, even if it cannot be said that events for which the
employer is responsible are the dominant cause of the loss, it
may be possible to apportion the loss between the causes for
which the employer is responsible and other causes. In such
cases it is obviously necessary that the event or events for which
the employer is responsible should be a material cause of the
loss. Provided that condition is met, however, we are of the opi-
nion that apportionment of loss between the different causes is
possible in an appropriate case.”
• The merits of a global claim and its chances of success are not
likely to be specified at an “interlocutory stage.” The matter of
whether causation can be demonstrated should usually be post-
poned until the trial, when all the particularity and evidence is
submitted, and therefore it would apparently not be determined
at some “interlocutory stage” upon the submission of a request
to strike out.
Walter Lilly & Company Limited v. Giles Patrick Cyril
Mackay, DMW Developments Limited (2012)
Walter Lilly & Company Ltd won a £15.3 million tender in 2004 to
construct a luxurious development project in Bolton Place, South
Kensington. The contract between the employer (i.e., Mackay) and
the contractor (Walter Lilly) was the JCT Form of Building
Contract (JCT 1998—without quantities) with a Contractor’s De-
signed Portion (CDP) supplement. Walter Lilly suffered significant
delays and claimed for an extension of time and losses and ex-
penses, leading to strained relations between the disputing parties.
The judge, Mr. Justice Akenhead, in charge of the Technology and
Construction Court (TCC) in London, describes the case as “a full-
blooded conflict between the parties in which there seems to have
been little, no or belated room for comprise.” Mr. Justice Akenhead
provided some interesting and valuable guidelines for preparing
and pursuing global claims. He reviewed much case law, including
Cases C1, C2, C10, and Doyle v. Laing, and deduced that there is
nothing wrong in principle with global claims, stating, “In princi-
ple, unless the contract dictates that a global cost claim is not per-
missible if certain hurdles are not overcome, such a claim may be
permissible on the facts and subject to proof.” To this effect, three

© ASCE 05020003-10 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003

 significant changes in the law on global claims can be deduced
from this landmark case:
• It is no longer a necessity for a contractor to prove that it is im-
possible or impractical to separate the consequence of each head
of claim (i.e., establish the causal nexus between an employer’s
risk event and the resultant loss and/or expense suffered).
• Global claims are not expected to fail if they include events
for which the employer is not liable.
• The contractor must adduce evidence that it would not have suf-
fered the loss in any event.
Impossible or Impractical to Establish the Causal Nexus
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Prior to Lilly V. MacKay, it was a requirement for the contractor to
prove that it is impossible or impractical to separate out the con-
sequences of each delaying event in order to for the global claim
to be successful (SC1). In Lilly v. Mackay, the Judge stated that
Walter Lilly must prove its global claim as a “matter of fact” while
pursuing it. In particular, a contractor must prove its claim based
“ : : : on a balance of probabilities that, first, events occurred which
entitle it to loss and expense, secondly, that those events caused
delay and/or disruption and thirdly that such delay or disruption
caused it to incur loss and/or expense : : : .” Nevertheless, Mr.
Justice Akenhead ruled that it is no longer a requirement for the
contractor to demonstrate that “ : : : it is impossible to plead and
prove cause and effect in the normal way or that such impossibility
is not the fault of the party seeking to advance the global claim : : : ”
in order for the global claim to be successful. He recognized that
the court might be “more skeptical about the global cost claim
if the direct linkage approach is readily available but is not de-
ployed” but also stated that this does not imply that a global claim
should be vetoed. Additionally, He refused Mackay’s argument
that a global claim should not be permitted if the contractor had
created the impossibility of disentanglement. Accordingly, he
stated that the argument that “a global award should not be allowed
where the contractor has himself created the impossibility of dis-
entanglement : : : is wrong.”
Employer Not Liable for Losses and Damages
Prior to Doyle v. Laing, it was generally affirmed that, if an em-
ployer could prove that a part of the contractor’s damage had been
due to a matter that was not the employer’s liability, the contractor’s
global claim would be a dead approach and fail in its entirety (FC2
or SC6). However, global claims, as in Lilly v. MacKay, are no lon-
ger likely to be stroked out if they encompass elements related to
events for which the employer is unaccountable. Any such events,
involving any contractor’s culpable events, must be removed from
the global claim and thus be apportioned. Therefore, according to
Mr. Justice Akenhead, that a global claim included events for which
the employer is not liable does not cause the global claim to fail
completely. As an alternative, the global claim would be decreased
by the loss resulting from that event: “The fact that one or a series
of events or factors (unpleaded or which are the risk or fault of the
claimant contractor) caused or contributed (or cannot be proved
not to have caused or contributed) to the total or global loss does
not necessarily mean that the claimant contractor can recover
nothing.”
Contractor’s Damage Not Incurred in Any
Other Event
Lilly v. MacKay affirmed that the contractor, as required previously,
has the burden of proving that it would not have incurred the loss in
any other event in the pursuit of a global claim (SC5). In particular,
Mr. Justice Akenhead stated that the contractor has to show that the
loss “would not have been incurred in any event”—for example,
that the bid price submitted by the contractor was not underpriced.
© ASCE 05020003-11
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003
Walter Lilly submitted witness evidence explaining the reasonable-
ness of its original tender allowances and compared them with
similar projects. It is obvious that Mr. Justice Akenhead considered
the evidence to be relevant since the employer’s quantity surveyor
had not recognized any underpricing at the bidding phase. Accord-
ingly, Walter Lilly was able to prove that “ : : : . its original
prices were realistic, sensible and at a level which, if the events
complained of had not happened, no net loss would have arisen.”
However, Mr. Justice Akenhead dismissed the contention that the
burden transfers to the employer, although he acknowledged that it
is open to the employer to “ : : : raise issues or adduce evidence that
suggest or even show that the accepted tender was so low that the
loss would have always occurred irrespective of the events relied
upon by the claimant contractor or that other events (which are not
relied upon by the claimant as causing or contributing to the loss or
which are the ‘fault’ or ‘risk’ of the claimant contractor) occurred
may have caused or did cause all or part of the loss” [paragraph
486(d)].
Interconnections between Success and Failure
Criteria
In order to further elaborate on the interconnections between the
already deduced criteria contributing to the success and failure of
a global claim, a framework has been conceptualized as illustrated
in Fig. 3. Prior to Lilly v. MacKay, the contractor was required
to show that it was impossible or impracticable to separate the loss
or expense attributable to each head of claim (SC1/FC3), which
was considered the core condition to pursue a global claim. How-
ever, as proved by Lilly v. MacKay, this is not acknowledged any-
more as a “matter of principle” (Fawzy and El-Adaway 2015).
As such, the contractor must keep satisfactory contemporaneous
records and proper documentation (payment certificates, minutes
of meetings, site instructions, timesheets, material invoices, etc.)
in order to provide appropriate particulars that can be used for
(1) supporting the losses claimed (SC2/FC1, SC3) and (2) proving
the impracticability to attribute or link the actual costs to individual
events (SC1, SC2/FC1). Conditional to the success of the global
claim is the basic requirement that a global award should not be
allowed if the contractor itself created the difficulty of disentangle-
ment (SC4), justifying the link between SC4 and SC1 and
SC2/FC1. To be noted though is that, in the view of Judge
Akenhead in Lilly v. MacKay, the unreasonable delay by the con-
tractor in making its global claim does not impede the success of
the claim at trial.
In the pursuit of a global claim, the plaintiff has the burden of
quantifying the loss suffered, which is usually equal to the total cost
that the claimant has incurred over and above the contract price. It is
calculated as the difference between the actual cost of the contrac-
tor and the price submitted in his tender. While there is nothing “in
principle” wrong with pursuing a global claim, the contractor is
required to show that its tender was appropriately well-priced by
proving that the loss incurred would not have been incurred in
any other event (SC5). That said, the claimant must submit evi-
dence suggesting that its contract price was reasonable and that
the claimed damage occurred only because of the employer’s
events relied upon by the contractor. Subsequently, the contractor
must provide the necessary particulars in order to prove the reason-
ableness of the figures representing the actual incurred costs (SC3).
That is, the claimant, while not being required to demonstrate cau-
sation, must adduce the necessary evidence and particulars in order
to prove the adequacy of the information relied upon as the basis for
the total cost claim.
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 SC4
Contractor not unreasonably delaying
the claim and/or himself creating the
difficulty

SC1 SC2
Impracticable or Sufficient or adequate
impossible to particularize particularity
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FC3 FC1
Failure “even to attempt” Failure to plead the case
to specify any discernable with sufficient or adequate
nexus particularity and facts

SC5 SC3
Reasonableness of the
Reasonableness of the
contractor's actual incurred
contractor's bid price
costs

Legend
Success criterion No longer a prerequisite for
(SC) the success of claim as per
Walter Lilly’s case CS6
SC6
Failure criterion
Lack of the contractor's
(FC)
responsibility for the added
No longer a prerequisite for
the success of claim as per costs
Related criteria John Doyle’s case FC2
Failure to prove the costs
incurred were due to faults
by defendant
Mirroring success/failure criteria

Fig. 3. Interconnections between failure and success criteria for global construction claims.

Wallace (2012) considered courts to be generally reluctant in
accepting claims based on the total cost method in construction dis-
putes. Nevertheless, the total cost method has been employed in
those odd situations where no other technique to calculate losses
is practicable and where the tribunal adopts appropriate precau-
tions. Accordingly, the link (SC3, SC5) is mainly concerned with
the pursuit of a total cost claim, where the contractor computes the
losses as the difference between the actual costs incurred and the
contract price, hence aspiring to a cash-neutral state. To be noted
here is that the contractor must include in its claim only the losses
that are the responsibility or fault of the employer (SC6/FC2), jus-
tifying the link (SC3, SC6/FC2). However, Doyle v. Laing and Lilly
v. MacKay show that even if the global claim contains an event that
is not the fault of the employer, this does not imply that the con-
tractor will not recover a part of the claimed damages; the award
thus depends heavily on the significance of this event.
Conclusions
It has been more than five decades since courts of law opened the
door to the pursuit of global claims, realizing that a composite
nexus between individual breaches and incurred losses might
render the relationships between those individual events and their
respective consequences tremendously complex or even impracti-
cable to accurately apportion. However, the courts have methodi-
cally enforced stringent conditions, prior to the filing of any such
claim, in relation to the pleadings and in particular regarding any
contribution to the damage that may have been the result of the
plaintiff’s events. This research paper provides an exhaustive inves-
tigation of the conditions that have helped in making global claims
more admissible and potentially successful. A case law review,
involving a total of 26 cases, was performed as part of the inves-
tigation. This followed a methodical search effort that produced
two main sets of 13 and 11 cases, in which the global claim either
succeeded or failed, respectively, because of a number of inferred
factors (i.e., success and failure criteria). The remaining two
cases signify a critical shift in legal analyses which can be viewed
as providing a more lenient prospect for contractors filing global
claims.
Six essential criteria, deduced from the case law review, are in-
dicated to contribute to the success of global claims. A number of
observations or deductions can be drawn in this regard:

© ASCE 05020003-12 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003

 • Three success criteria are found to mirror all three established
failure criteria. A pleading of a global claim is permissible only
if the contractor filing such claim proves the impossibility or
impracticability of separating the consequence of each head of
claim. This is taken to be equivalent to the failure criterion
describing the reluctance of the claimant to specify this nexus.
However, according to Lilly v. MacKay, this is not recognized
any longer as a core requirement for the success of global claims.
• The plaintiff must provide necessary evidence and particulars to
prove its case. This criterion can be seen to also mirror the first
criterion found to obstruct the success of global claims—the failure
to plead the case with sufficient or adequate particularity and facts.
Downloaded from ascelibrary.org by Western Sydney University Library on 03/21/20. Copyright ASCE. For personal use only; all rights reserved.
• One important success criterion calls on the claimant to separate
the consequence of events that are not the responsibility of the
employer and consequently do not entitle it to an extension of
time and/or losses. This obviously corresponds to the failure cri-
terion requiring the contractor to prove that the losses incurred
were due to faults by the defendant. However, Doyle v. Laing
and Lilly v. MacKay demonstrate that, even if the global claim
includes an event that is not the liability of the owner, this does
not result in the plaintiff not being awarded a part of the claimed
losses, contingent on the significance of the event in question.
• Apart from the aforementioned critical criteria, the plaintiff must
satisfy two basic principles in order to succeed in its global
claim, namely: (1) not having unreasonably delayed making
the claim, and (2) proving the reasonableness of both its tender
price and the actual incurred costs.
Finally, it is important to note that the industry-reported cases
reviewed in this paper and the analyses of their peculiarities are not
to be understood or interpreted as legal advice for contractors when
filing global claims. Rather, the synthesis of success and failure
criteria aims to provide guidance to contractors as to the viability
of a global claim and, from a legal perspective, the criteria that need
to be met for it to succeed. Also to be noted is that the 26 cases
examined for the purpose of analysis span about five decades.
Given the criteria identified in this work, further case analysis
would only endorse these criteria or possibly reveal new ones. That
is, any additionally determined criteria cannot realistically be ex-
pected to negate those designated as success criteria that contractors
must strive to satisfy when embarking on a global claim.
In brief, a global claim may be observed as the exception to, or
at least the alteration of, more commonly accepted event-based,
cause-effect claims. The work presented in this paper is not in-
tended to support or encourage the pursuit of global claims by con-
tractors. Rather, it serves the purpose of approaching such claims
from the perspective of criteria that, from a legal perspective, are
critical to them. Ultimately, when these legally based success
criteria (three of which happen to mirror all three identified failure
criteria) are satisfied, it is believed that the prospect of a successful
global claim will greatly improve.
Data Availability Statement
All data, models, and code generated or used during the study
appear in the published article.
Acknowledgments
The authors would like to acknowledge the generous endowed doc-
toral research funding granted by the Maroun Semaan Faculty of
Engineering and Architecture at the American University of Beirut
in support of this research.
© ASCE 05020003-13
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(3): 05020003
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