‘TOTAL COST CLAIMS’ AND ‘MODIFIED TOTAL COST CLAIMS’

John Doyle Construction Ltd v Laing Management (Scotland) Ltd (unreported, Inner House of the Court of Session, 11 June 2004)

In John Doyle Construction Ltd v Laing Management (Scotland) Ltd (unreported, Inner House of the Court of Session, 11 June 2004) Lord Drummond Young distinguished between a global claim or a ‘total cost claim’, on the one hand, and a ‘modified total cost claim’ on the other hand. In the case of a total cost claim the contractor claims that the whole of his additional cost in performing the contract has been caused by events for which the employer is responsible (although he cannot identify causal links between each cause of delay and disruption and the cost consequence thereof). In the case of a modified total cost claim the contractor divides his additional costs and claims that certain parts of those costs are the result of events for which the employer is responsible. The case is also important for its recognition of the fact that, even in the case where it cannot be said that events for which the employer is responsible are the dominant cause of the loss, it may be possible for the court to apportion the loss between the causes for which the employer is responsible and other causes. This apportionment may result in some ‘rough and ready’ results but Lord Drummond Young stated that this was preferable to the injustice which would follow from the dismissal of the claim on the ground that the contractor could not prove that the whole of the loss was the responsibility of the employer.