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Acknowledgement

We would like to take this opportunity to show our greatest gratitude to all the people
who supported us in this course work. If they didn’t give their support we would be
unable to complete this course work successfully. The completion of this massive task
could not have been possible without the guidance and encourage of our lecturers.
They always are guiding us correct path. Therefore, their contributions are sincerely
appreciated and gratefully acknowledged. However, following group of lecturers
should be deeply appreciated for giving knowledge and wisdom when doing this
coursework of Management of claims and disputes.

Mr. Tilak kolonne, Mr.Lalith Rathnayake and project work lecturers Mrs. Mathusha
Fransis and Ms.Savindi Perera. Last but not least, to all friends and others who shared
their support physically and morally to fulfill this task successfully, thank you.

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Table of Contents

Acknowledgement......................................................................................................... i

Table of Contents ......................................................................................................... ii

1.0 Introduction ....................................................................................................... 1

2.0 Global claims .................................................................................................... 3

2.1 John Doyle Construction Limited v Laing Management (Scotland) Limited3

2.1.1 Causation for the case and matters referred to the court for judgment .. 3

2.1.2 Key contractual and legal principles of the case .................................... 3

2.1.3 Up held principles by the Judges ........................................................... 4

2.1.4 Related provision of the Contract Form ................................................. 4

2.2 Walter Lilly & Co. Ltd v Mackay & Anor (2012) ........................................ 4

2.2.1 Causation for the case and matters referred to the court for judgement 4

2.2.2 Key contractual and legal principles of the case .................................... 5

2.2.3 Up held principles by the Judges ........................................................... 5

2.2.4 Related provision of the Contract Form ................................................. 5

3.0 Concurrent delay ............................................................................................... 6

3.1 North Midland Building Limited v. Cyden Homes Limited [2017] EWHC
2414 (TCC) .............................................................................................................. 6

3.2 North Midland Building Ltd and Cyden homeError! Bookmark not
defined.

3.3 Henry Boot vs Malmaison ............................................................................. 8

4.0 Notice provision ................................................................................................ 8

4.1 Schindler Elevator Corporation vs. Tully Construction Corporation. ........... 8

4.1.1 Causation for the case and matters referred to the court for judgment .. 8

4.1.2 Key contractual and legal principles of the case .................................... 9

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4.1.3 Up held principles by the Judges ........................................................... 9

4.1.4 Related provisions of the Contract Form ............................................... 9

4.2 Tritonservices, Inc. v. University of Cincinnati .................................................. 10

4.2.1 Causation for the case and matters referred to the court for judgement
10

4.2.2 Key contractual and legal principles of the case .................................. 10

4.2.3 Up held principles by the Judges ......................................................... 10

4.3 American Safety Casualty Insurance Company v. City of Olympia ........... 11

5.0 Conclusion ...................................................................................................... 12

6.0 References ....................................................................................................... 13

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1.0 Introduction
Construction law is a division of law that deals with matters relating to
building construction, engineering and related fields. It is basically a mixture
of contract law, commercial law, planning law, employment law and tort.
Construction law covers a wide range of legal issues including contract,
negligence, bonds and bonding, guarantees and sureties, and other security interests,
tendering, construction claims, and related consultancy contracts. Construction law
affects many participants in the construction industry, including financial
institutions, surveyors, quantity surveyors, architects, builders, engineers, construction
workers and planners.

Claims commonly arise between the parties to construction contracts. This can be
because of problems including; delays, changes, unforeseen circumstances,
insufficient information, and conflicts. Claims might be made for loss and expense,
extension of time, liquidated damages and so on. The contract should set out what can
constitute a claim and how it should be dealt with. However, as construction is a
complex process, there is not always a straight-forward relationship between one
particular breach and one specific effect. As a result, in some circumstances,
contractors may make a ‘global claim’ by rolling together a number of different
breaches and making a case for a cumulative effect resulting in a single total cost
without attributing actual costs to specific events.

In this report, Construction law cases analysed under the selected areas of Global
Claims, Concurrent Delays and Notice Provision. Global claims have not always found
favour with the courts, as they can ignore other reasons for the delay or disruption, and
they place the burden of proof on the employer to carry out a detailed assessment of
the claim and how it has been constituted. They can also be counter-challenged by the
client, citing contractor’s deficiencies such as; labour shortages, poor management,
plant breakdowns and subcontractor non-performance.

Delay in construction is just such an established issue, and concurrent delay (or
contributory causation of delay) tends to be a common area of dispute on modern

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construction projects. A review of the courts’ jurisprudence in respect of concurrent

delay reveals there is little in the way of authority to guide the parties as to established
law Concurrent delay refers to a situation where a delay to completion is caused by
two or more events. Where all of the causative events are the responsibility of one
party, the issue is of only academic interest. Where, however, the liability for causative
events is borne by different parties, disputes can and often do arise.

A notice clause states how the parties to a contract will communicate with each other
in written form. It may seem too simple and obvious to include in contract. Notice
provisions are very often treated as an afterthought, but they should be reviewed
periodically. The purpose of a notice provision is to cut down on the number of
potential disputes by clearly defining what a legally binding notice. They’re useful
because they allow a party that employs another more time to react to problems, such
as delays. The employer must have sufficient time between knowing about the problem
and coming up with a solution. These provisions also help the employee since he or
she clearly knows what to do in the event a problem arises.

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2.0 Global claims

2.1 John Doyle Construction Limited v Laing Management

(Scotland) Limited
In this recent Scottish case, a dispute arose concerning the construction of a new
corporate headquarters for Scottish Widows in Edinburgh. The pursuers (claimants),
who were subcontractors, advanced a global claim for loss and expense and the
defenders (defendants), the contractors, attacked the pleading on the basis that certain
events alleged to have caused the loss claimed were not events on which they could
rely, at least in part, because they did not give rise to a claim for time or money. In the
absence of being able to separate the good from the bad, the whole claim had to fail,
the defenders argued (i.e. The all or nothing argument was deployed).

2.1.1 Causation for the case and matters referred to the court for judgment
This decision of the Scottish Inner House of the Court of Session discusses the
calculation of loss and/or expense following alleged delay and disruption of building
work at the corporate headquarters of a leading insurance company. Doyle brought a
claim for an extension of time of 22 weeks. Doyle alleged that they had to change their
method of construction as a result of late provision of design and builders work
information, delayed access to the site, and disruption of work on site.
2.1.2 Key contractual and legal principles of the case
The court said that where the dominant cause of the loss was not the employer's
responsibility, it may nevertheless be possible to apportion the loss between two
different causes. This should be done, it said, according to their relative significance.
It was suggested that as a "rule of thumb", responsibility should be divided on an equal
basis unless there are special reasons to the contrary. Further, if one or more of the
concurrent causes of the loss and expense is the contractor's responsibility, it may be
appropriate to deny the contractor any recovery for the period of delay during which
the contractor is in default. The court has also suggested that this approach may be
taken in relation to issues of disruption which cause loss and expense, although the

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resulting apportionment may be somewhat "rough and ready". The court stressed that
any such allocation must be based on the evidence.
2.1.3 Up held principles by the Judges
Such a claim could only be upheld if all of the causative events were events for which
the defender was contractually responsible. To uphold such a global claim where only
some of the events which contributed to causation of the total loss were events for
which the defender was responsible would be to make the defender bear loss for which
he had no legal liability.
2.1.4 Related provision of the Contract Form
The pursuers' claim for loss and expense was based on Clause 4.45 of the Works
Contract, which placed on the defenders liability in respect of loss and expense caused
by the events listed in Clause 4.46. It was presented as a global claim, but not all of
the factors said to have caused the delay and disruption which resulted in the loss and
expense were events listed in Clause 4.46.

2.2 Walter Lilly & Co. Ltd v Mackay & Anor (2012)
This case summarised the legal position on a number of areas of Construction Law
including the scope of legal privilege, concurrent delay in construction disputes and
global claims and notification. The case is seen as containing a common-sense
approach to quantification of loss in global claims.

2.2.1 Causation for the case and matters referred to the court for judgement
The case raises a number of issues which may be of interest to the construction industry
and specialist legal practitioners and these include global claims and concurrent delays.
In one sense, this litigation is very old-fashioned because it has involved a full-blooded
conflict between the parties in which there seems to have been little, no or belated
room for compromise, although the quantum experts have gone some way to reducing
what is in issue. There remain in effect hundreds of issues Judgment Approved by the
court for handing down Walter Lilly -v- DMW between the parties, hence the length
of this judgment.

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2.2.2 Key contractual and legal principles of the case

There are seven principles in the judgement as follows;
I. Ultimately claims by contractors for delay or disruption related loss and expense must
be proved as a matter of fact and on the balance of probabilities.
II. Contractual notice requirements. if the conditions precedent set out in clause 26 are
satisfied, direct loss and expense can be ascertained by appropriate assessment.
III. There is no set way for contractors to prove the three elements they are required to
prove as set out in principle 1.
IV. There is nothing wrong in principle with a “global” or “total cost” claim but there are
added evidential difficulties.
V. The fact that one or a series of events or factors (either unleaded or which are the
contractor’s risk) caused or contributed to the global loss does not necessarily mean
that the claimant contractor can recover nothing.
VI. There is no need for the court to go down the global or total cost route if the actual
cost attributable to individual loss causing events can be readily or practicably
determined, although this does not prevent a global or total cost claim being made.
VII. A global award can still be made even if the contractor has himself created the
impossibility of disentanglement.

2.2.3 Up held principles by the Judges

The decision of first instance stated that the general approach to be taken is one where
a contracting party will be liable for all losses arising naturally from the breach as well
as for all losses which may reasonably be supposed to have been in the contemplation
of the parties at the time they made the contract.

2.2.4 Related provision of the Contract Form

Clause 26 in the Contract for this case sets out the procedural requirements with regard
to the giving of notices and these were a Condition Precedent. There are issues with
Condition Precedent Notices clauses such as enforcement of time bars and whether a
Condition Precedent creates a conflict with the prevention principle. However,
believes that if these are met then the clause does not prevent a common-sense
approach to assessment of the loss from taking place.

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3.0 Concurrent delay

At the same time, delays have been the cause of many controversies in the construction
law province. When two or more critical delay events, one is the contractor's guilty
incident and the other is the employer's guilty incident, it can be said that the delay
occurs at the same time, and at the same time, their influence is felt.

3.1 North Midland Building Limited v. Cyden Homes Limited

[2017] EWHC 2414 (TCC)
In North Midland Building v Cyden Homes, the contractor filed an application for an
extension of the time extension clause in the revised JCT Design and Construction
Contract 2005. The extension of the time clause stipulates that if the delay is caused
by a delay, the contractor may request an extension of the time. Related events, but
any delays due to related events coincide with another delay for the contractor's
responsibility and should not be considered.

The Contractor requested the UK Technical and Construction Court to submit two
statements. First, the effect of the clause was that the contractor’s responsibility for the
delay was in parallel with the related event, and the time would be long; secondly, in
this case, the contractor It must be completed within a reasonable time and the delayed
liquidated damages are invalid.

When seeking these statements, the contractor relies on the precautionary principle.
The precautionary principle arises if the employer’s actions or omissions prevent the
contractor from fulfilling its obligation to complete the work by the date of completion.
If such preventive action causes serious delays in the project and there is no mechanism
in the contract that can extend the time of completion or if the mechanism is ineffective
or inoperable, the contractor must complete the work within a reasonable time. Time
and employers cannot delay the collection of liquidated damages.

The Contractor believes that due to the operation of the time extension clause, even in
the case of simultaneous delays, even if the employer takes precautionary measures,

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the completion time cannot be extended and the precautionary principle applies to the
extension of time. The court rejected this argument and believed that the precautionary
principle would not occur in this case. Instead, the court found that the case turned to
an extension of the time clause, which the court called “crystal clear.” The court found
that the parties have expressly agreed that if the contractor is responsible for the delay
event and the delay in the delay caused by the relevant event is delayed or delayed, the
extension of the time awarded to the contractor does not include the delay caused by
the relevant event.

In arriving at this conclusion, the court stated that the definition of the relevant event
in the contract clearly includes any preventive action by the employer. Therefore, the
court found that the parties had agreed to deal with the extension of time in the case of
employers taking preventive actions and should maintain the agreement. The court
also dismissed the contractor’s other statement that regardless of the court’s findings
on the first filing, the contractor’s liability to pay the delay in payment of liquidated
damages would be lapsed due to the employer’s preventive actions. The court held that
there was no power to support the argument that if the parties agreed to deal with the
extension in a particular manner, such an agreement would render other actionable
liquidated damages clauses inoperable. There is also nothing in the contract to support
the prevention of preventive behavior and any other related events contained in the
relevant event definition.

The judgment recognizes that the legal effect of the common law prevention principle
may be amended or even revoked by the agreement. Therefore, if the contract excludes
any right to extend the time in the event of a delay, the employer will be able to recover
the late damages during the concurrency, even if its preventive actions may result in
at least some delay.

While this may lead to more widespread provisions for allocating the risk of
concurrency delays, in practice, true concurrency delays are rare. Often, after analysis,
it is clear that the impact of one delay event has a greater impact on the critical path
than the other, which means that the two delay events cannot be said to be true.

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3.2 Smith vs united states

In this case government has terminated a supply contract. As a result, Contractor had
to suffer. However, court held that Contractor had made no attempt to recognize and
apportion the amount of delay, for which it was responsible. Court held that,
Contractor cannot claim in this situation as he cannot recognise and apportion the
amount of delay. Although both parties are responsible for the delay, as the Contractor
cannot justify the amount of delay, Contractor would not be given an EOT

3.3 Henry Boot vs Malmaison

In this case two parties contracted with each other under a JCT standard form of
building Contract. The contractor claimed an EOT as a result of delay said to have
been caused by variations and late instructions. The employer argued that the alleged
variations did not cause any delay because they were not on the critical path and that
the true cause of the delay was other maters which were contractor-risk events.
According to this case if there are two concurrent delays, one which is relevant and the
other is irrelevant, then the Contractor is entitled for a delay caused by the relevant
event. For example, if a delay us caused due to bad weather and on the other hand if
Contractor had not sufficient labours, if the delay has been caused due to bad weather,
Contractor is entitled for an extension of time.

4.0 Notice provision

4.1 Schindler Elevator Corporation vs. Tully Construction
Corporation.
4.1.1 Causation for the case and matters referred to the court for judgment
A New York appellate court issued a decision in 2016 that serves as an important
reminder to all tiers of the construction industry: courts take the notice provisions in
your construction contracts very seriously. In the Schindler Elevator Corp. v. Tully
Const. Co., Inc. case, the Appellate Division dismissed a subcontractor’s claim in its
entirety because emails and letters that the subcontractor provided to the prime
contractor did not comply with the strict notice provision in the prime contract.

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4.1.2 Key contractual and legal principles of the case

According to the notice provision in question required the party submitting a claim to
provide verified statements of the claim amount, together with supporting
documentation. The provision also said that if a claimant fails to comply strictly with
these requirements, it would waive its entire claim. What is also noteworthy about
the Schindler case is that this notice provision did not come from the underlying
subcontract. It came from the prime contract with the owner.

4.1.3 Up held principles by the Judges

because the subcontract contained a “flow-down” provision that incorporated the
prime contract provisions into the subcontract commonplace in construction contracts
the Schindler court concluded that the subcontractor was bound by the strict notice
provision in the prime contract.
The court held that “where a construction contract contains a condition precedent-type
provision setting forth the consequences of a failure to strictly comply, strict
compliance will be required. According to the court, Schindler’s communications
clearly did not “strictly comply” with the contract’s condition precedent for a delay
damages claim. Sealing plaintiff’s fate, and the dismissal of the action, was the contract
wording stating that a “failure to strictly comply with shall be deemed a conclusive
waiver of any and all claims for damages due for delay arising from such condition.
The court likewise brushed aside plaintiff’s argument that actual notice of the delay
and resulting damages obviated the contract-based notice obligation. The court found
no contract language to support such a waiver of the contractor’s obligation to “strictly
comply” with the notice requirement.
4.1.4 Related provisions of the Contract Form
According to the FIDIC 99 Contract form, following provisions can be considered as
related provisions to the case,
 Shall submit any other notice which are required by the contract and supporting
particulars for the claim. (Clause 20.1)
 Subcontractor is bound by the strict notice provision in the prime contract.

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4.2 Tritonservices, Inc. v. University of Cincinnati

4.2.1 Causation for the case and matters referred to the court for judgement
An HVAC contractor found itself behind schedule and having funds withheld from its
pay applications as liquidated damages. The contractor attempted to recover additional
costs associated with alleged delays resulting from asbestos abatement, another
contractor’s work, and the management of the project schedule. In addition, the
contractor attempted to have the owner rescind liquidated damages.
From the start of the project, there was a lag between the HVAC contractor’s
completion date and the other contractors’ completion date because the award of the
HVAC contractor’s contract occurred later than the other contractors’. To provide a
common completion date for all contractors on the project, the project manager and
the HVAC contractor executed a change order to compensate the contractor for the
later completion date.

The change order, however, also accounted for time associated with the discovery of
asbestos during the project. At trial, the HVAC contractor argued that the change order
did not include compensation for delays relating to the asbestos
4.2.2 Key contractual and legal principles of the case

An original baseline schedule was signed, and therefore accepted, by all the
contractors. The HVAC contractor even signed an updated baseline schedule. At no
time did the schedule’s completion date change, and at no time did the contractor make
a valid request for an extension of the contract time. Because the contractor did not
request an extension of time or prove that the owner was responsible for the delay, the
owner properly applied liquidated damages against the contractor for failing to
complete the project according to the contract’s schedule.

4.2.3 Up held principles by the Judges

The court, however, provided that the owner did not conduct itself inconsistently with
its intent to follow the contract’s dispute resolution procedures. In fact, the project
manager actually insisted upon following the contract’s claim submittal procedures
when it informed the contractor that it would have to file a claim according to the
contract terms.

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The contractor also attempted to have the court rescind the liquidated damages. The
contractor claimed that the liquidated damages were the result of the owner’s failure
to properly manage the project schedule.

4.3 American Safety Casualty Insurance Company v. City of

Olympia

The Washington State Supreme Court made a decision, on December 27, 2007 in the
American Safety Casualty Insurance Company v. City of Olympia, once again affirmed
earlier in 2003, in both cases, the court did not rule the contractor. Comply with the
written notice of the contract. The court does believe that if the contractor proved that
the owner undoubtedly gave up the contact request and then it No need to follow. For
safety reasons, the actual advice is to follow Contract requirements.

A description of the two court cases will illustrate this point. Safe in the American
Safety Casualty Insurance Company, the dispute occurred in Katspan, Inc. between
and the City of Olympia has more than a section of wastewater pipeline project
construction. The contract has a written claim notification request and a 180-day legal
period. In case the contractor failed to comply with these requirements and the
contractor waived its claim.

Katspan completed part of the project in May 2001 after the original contract
completion date, apparently due to additional and/or changed work, which extended
the duration of the project. During the project, Katspan did not submit a written change
notice 76201.1 / GENERAL.1 order or claim. After Katspan completed his work, New
York City “punished” Katspan’s late work (collecting so-called liquidated damages)
and retained New York City’s right to strictly comply with all terms of the contract.
After the city closed the project, Katspan did not promptly protest the liquidated
damages. In November 2001, Katspan filed a claim with the City of New York.

Then, New York City negotiated with Katspan's bonding company ("American
Safety") and asked for backup documents to be available one year later. City and

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American Safety consultants and auditors met with Katspan’s claim. In May 2003,
New York City rejected Katspan’s claim. A year later, in August 2004, Katspan and
the American Safety sued the city.

Without any dispute, Katspan did not comply with the written requirements of the
contract.

Claim or 180-day lawsuit limit deadline. Katspan took this position When New York
City agreed to negotiate, New York City gave up the right to comply and attempted to
reach a settlement after submitting the contractor’s claim late. The Supreme Court
disagreed. The court considered entering the settlement negotiations No "any more"
does not constitute a more demanding contract. The court ruled that giving up
(abandoning the contract) must be clear Declared by the owner or unambiguously
("clear" in legal terms) the behavior of the owner. The court ruled that because New
York City’s intentions were at most “unclear,” The City of New York did not abandon
the contract. Actual impact of holdings that is Katspan lost his claim.

5.0 Conclusion

Construction law that is very important for signing a written contract with all parties
signing any major economic transaction. This is especially true for construction
projects, which are inherently complex. The construction project contract stipulates
the obligations of the parties to each other and determines how to share or divide the
risks in the project.

Knowing the major areas of construction law and the famous case laws regarding with
the major areas which those case laws are belong is essential for getting smart in the
construction industry. Causation for the case and matters referred to the court for
judgement,key contractual and legal principles of the above cases, up held principles
by the judges and related provisions of the contractor form were the key areas
associated with those case laws.

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Although the application of the FIDIC is important for the basic knowledge and the
applying of the construction laws with the practical situation in construction industry
are that could be gained through this.

6.0 References

In the High Court of Justice Queen's Bench Division technology and construction
Court Case No: 2010-TCC17747. (2012). Royal Courts of Justice Strand, London,
WC2A 2LL.

John Doyle construction Limited v. Laing management (Scotlad) Limited. (2002).

Retrieved from https://www.scotcourts.gov.uk/search-
judgments/judgment?id=721c87a6-8980- 69d2-b500-ff0000d74aa7

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