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Choose your words with care

Legal matters

A woman friend used to work as a site agent. She added a new weapon to the main contractor's armoury in that she could charm subcontractors to continue roofing long after the pubs opened, and persuade drivers single- handedly to unload their own plasterboard. When working on a housing refurbishment project, complaints from tenants led her to issue a memo asking operatives to keep their radios turned down, or better still, off. She concluded thus: 'I apologise for having to take this draconian step but hope you will co-operate.' Later a contractor came into her office. She commented on the cold weather. 'Yeah,' he replied, 'its a bit bloody draconian out there.' Later still she found someone struggling to get a bit of machinery working. 'I don't know what 's wrong with it,' he said, 'it's just being draconian.'

When acting for a contractor in an arbitration, I was trying to establish that delay to a hotel extension had been caused in part by the instructions of the hotelier, who made Basil Fawlty seem reasonable. I called the electrician. His witness statement referred to the constantly changing requirements of the hotelier and made clear that this capricious attitude delayed the works. The first question my opponent asked in cross-examination was: 'What does capricious mean?'

These examples support a theory which is suggested as being at the root of many disputes, namely that much confusion can be caused by inappropriate language. For example, the text books tell us that liquidated damages are intended to be a genuine pre-estimate of the likely losses to be suffered in the event of delay. There are various instances in which such a clause would be unenforceable, particularly if the agreed sum is out of all proportion to any likely losses and is therefore a penalty. This does not stop parties to building contracts referring to the liquidated damages clause as 'the penalty clause'. Similarly the complexities of sectional completion and partial possession are well known. The author of Hudson observes: 'Both sectional completion and partial occupation provisions, although perfectly simple in principle, frequently prove too much for owners' advisers when preparing the contract documentation.' It is tolerably clear however, that the provisions of the jct form which relate to partial possession (jct 80 Clause 18 and jct 63 clause 16) do not provide for sectional completion. Users of the 63 form may have been forgiven for thinking that it did, however, since the side-note to the partial-possession clause was entitled 'Sectional Completion'.

The meaning of the term 'global claim' is debated, particularly when trying to ascertain the courts' attitudes to the same. It can mean a claim where no link can or has been made between the delaying events relied upon, the delay caused and the losses claimed. This is not to be confused with a 'total cost claim' where a comparison is made between the anticipated cost of the works and the actual cost, and a claim made for the difference. These claims are generally not well received by the courts, not least because if various events are said to cause the same delay, but only one event is established, you can end up with a minor claim such as delay in fitting a burglar alarm being said to lead to losses of £1 million, as in the ici v Bovis case.

Global claims can be made, however, where a causal link can be made between the event relied upon and the delay caused, but the complex interaction of events renders specific relation between the events and the money consequences impossible. These various examples, when considered together, show that we should choose our labels with care.

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