John Doyle Construction Ltd v Laing Managment (Scotland) Ltd (2002)

© Daniel Atkinson 2002               24 July 2002

The process of construction can be a complicated interaction of activities.  Normally a party making a claim must show a connection between the event and each item of loss.  If the overall loss has been caused by the interaction of a number of events, and it is impossible to trace the connection between each individual event and the individual loss, then a global claim is often made.  The loss is attributed to the list of events, without a connection between each part of the loss and each event. 

The decision by Lord MacFadyen in John Doyle Construction Ltd V Laing Management (Scotland) Ltd (2002) usefully gives a summary of the law and raises a number of interesting points.  The dispute concerned the construction of new corporate headquarters in Edinburgh, and Doyle claimed for loss as a global claim.  It was common ground that a global claim for loss may be advanced L. B. Merton –v- Stanley Hugh Leach, Wharf Properties Ltd –v- Eric Cumine Associates and recently John Holland Construction –v- Kvaerner R. J. Brown (1996) 82 BLR 83.   

It was held that the logic of a global claim was that all the events which contribute to causing global loss must be the liability of the other party.  If there are events for which the other party had no liability, the effect of upholding the global claim would be to impose a liability which, in part, was not justified.  A global claim would then fail. 

Advancing a claim for loss in global form is therefore a risky approach.   Failure to prove that a particular event was the liability of the other party, would not be fatal to the claim if the remaining events for which the other party was liable were proved to have caused the global loss.  On the other hand, proof that an event which played a material part in causing global loss, but was not the responsibility of the other party, would undermine the logic of the global claim.   In addition, if the other party proved that other factors had made a material contribution to the cause of the global loss, for which he had no liability, then the global claim would again be undermined. 

This “all or nothing” approach is mitigated by riders which are the important aspect of the decision.  The first of these is that while the global claim as such may fail, it did not follow that no claim would succeed.  The fact that a global claim is necessary because of the difficulty of causation, did not mean that after evidence has been led it would be impossible to attribute individual sums of loss to individual events.  The global claim may fail, but there may be in the evidence a sufficient basis to make some connection and to make a rational apportionment of part of the global loss to the causes for which the other party was responsible. 

The second rider is that causation must be treated as a common sense matter.  That is particularly important where there are concurrent causes of delay. 

Applying those principles to the present case, Lord MacFadyen held that the case should proceed.  In doing so he gave two warnings. Concurrent causes in which one cause was not the responsibility of the other party was best left for detailed consideration in subsequent proceedings.  In addition and importantly he held it would be wrong to exclude the possibility that the evidence properly led would be a satisfactory basis for an award of some lesser sum than the full global claim.  On that basis it is difficult to see that a claim on a global basis would be rejected simply on the basis that it was a global claim. 

Nevertheless even in subsequent proceedings a global claim will fail if a material part of the cause of the loss was an event for which the other party was not liable and if the evidence disclosed no rational basis for the award of any lesser sum.

Allowing the case to proceed did not give carte blanche to choose how to prove loss.  If a lesser claim was to be made out, that must be done on the basis of evidence which was properly led within the scope of the existing case as represented.  This was a warning to those reluctant to attempt a full cause and effect analysis with the hope to prove its case in subsequent proceedings.