Dr. Franco Mastrandrea^[1]

First published in the ICLR

1. Introduction

There has recently been a marked increase in commentary – across social media, technical journals, and legal discourse – questioning whether global, total cost, and total time claims remain viable in modern construction disputes. Such commentary often descends into broad generalisations, with assertions that global or total cost claims are “not worth the paper they are written on.” Such characterisations are, however, an over‑simplification.

The debate typically arises from a familiar factual pattern. A contractor encounters numerous instructions, variations, or delayed releases of information by or on behalf of the employer under a traditional construction contract. Those matters may interact in complex ways. Their combined effect – whether in delay, disruption, or increased cost – may resist reliable separation into individual cause-and-effect chains. In such circumstances, it is not whether conventional methods of quantification are preferable, but whether the contractor to be denied any meaningful remedy altogether simply because precise segregation has proved impracticable, even impossible.

As a matter of principle, the party asserting a claim bears the burden of establishing both the fact of loss and its extent.^[1] Tribunals expect detailed evidence of damages, where it is, or might reasonably have been, available.^[2] But it is a mistake to conclude that such expectation is absolute. The law has long recognised that insistence on precision may defeat justice, and that genuine difficulty in assessing damages with certainty does not relieve the wrongdoer of the necessity of paying damages.^[3]

It was against that background that global, total cost, and analogous methodologies emerged, as pragmatic responses to the sorts of circumstances in which conventional cause‑and‑effect quantification was rendered impracticable, if not impossible.

At the same time, the context in which such claims are advanced has changed materially. Advances in project management, cost control systems, record keeping, and increasingly sophisticated delay and disruption analysis techniques have significantly narrowed the circumstances in which such methodologies can properly be deployed, while judicial and arbitral scrutiny has intensified across common‑law jurisdictions.

This paper argues that global, total cost, and total time claims remain legally viable, but within increasingly narrower circumstances. They are no substitute for proper particularisation where it is available, and they carry substantial forensic risk. Their continuing relevance lies primarily as methodologies to be deployed where conventional claims are genuinely impracticable, and where strict evidential pre‑conditions cannot reasonably be satisfied.

2. Clarified Typology of Claims

Types of Construction Claim

Construction claims can be broadly categorised, analytically, by reference to how causation and effect are asserted. Although these categories are sometimes conflated in practice,^[4] it is important to distinguish them:

• Type 1 – Conventional claims:
  Individual causes are alleged to give rise to identifiable individual effects.
• Type 2 – Global claims:
  A collection of causative events, all attributed to the defendant, is said to have produced a single composite effect, without individual attribution of loss to specific events.
• Type 3 – Total cost claims:
  A single overall pecuniary loss is attributed to one or more causes said to be the defendant’s responsibility.
• Type 4 – Total time claims:
  A single overall period of delay (whether project-wide or localised)^[5] is attributed to one or more causative events said to be the defendant’s responsibility.
• Type 5 – Apportioned claims:
  A proportion of an overall delay or cost overrun within a broader constellation of events is attributed by the claimant to the defendant.

In practice, claims may combine elements of more than one category. Many disputes surrounding global and total cost claims arise at the pleadings stage,^[6] where defendants commonly contend that the claimant has failed to articulate a case with sufficient particularity to permit a fair trial.^[7]

As will emerge, jurisdiction matters.

3. Global Claims

(a) Nature and Rationale

A global claim is one in which the claimant asserts that multiple, often interacting, events for which the defendant is responsible collectively caused a composite loss, without attempting to allocate specific heads of loss to individual events. Its doctrinal acceptance reflects an acknowledgment that certain consequences of construction delay/disruption resist precise analytical separation.

The modern recognition of such claims can be traced to J Crosby & Sons Ltd v Portland UDC, where the court accepted that, in circumstances of complex interaction between employer‑driven events, precise attribution of individual cost consequences might be impracticable.^[8] That approach was subsequently endorsed and refined in London Borough of Merton v Stanley Hugh Leach Ltd ^[9]and John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd,^[10] emphasising that recoverability depends on genuine impracticability rather than evidential convenience.

(b) Judicial Acceptance and Boundaries

The acceptance of global claims has never been unqualified. Courts have consistently emphasised that such claims may only succeed where the claimant can establish that it is impossible or impracticable to disentangle individual causative contributions.

(c) Forensic Risk

A global claim is inherently fragile. Proof that a material contributing cause of loss lies outside the defendant’s responsibility may be fatal to the claim as advanced. Defendants are therefore incentivised to focus not merely on disproving particular events, but on demonstrating the existence of an alternative material cause.

Conclusion:
Global claims remain admissible in principle, but their success depends upon an exacting evidential foundation. They are a high‑risk forensic strategy rather than a shortcut to recovery.

4. Total Cost Claims

(a) Methodology and Attraction

The total cost method calculates loss by comparing the claimant’s actual costs with its estimated or tendered costs, attributing the difference to the defendant’s alleged breaches. Its attraction lies in its apparent simplicity, but that same simplicity conceals significant assumptions in the claimant’s favour.

(b) Judicial Suspicion and the Four‑Part Test

Courts have consistently treated total cost claims with scepticism. The prerequisites commonly articulated are that:

1. it is impossible or highly impracticable to determine loss by more precise means;
2. the claimant’s original estimate or tender was reasonable;
3. the claimant’s actual costs were reasonable; and
4. the claimant was not responsible for the additional costs.

Each element presents a substantial evidential obstacle, particularly where records could have been maintained but were not.

(c) Practical Consequences

In practice, total cost claims frequently fail not because loss cannot be shown, but because claimants are unable or unwilling to expose their tender build‑up, justify their cost overruns, or confront inefficiencies in performance.

A recurrent reason for rejection of such claims is the contractor’s failure to keep or present adequate contemporaneous records where such records could reasonably have been maintained. Courts have consistently refused to allow the total cost method to remedy evidential deficiencies of the claimant’s own making.^[11]

Conclusion:
Total cost claims are legally permissible but evidentially vulnerable in practice. They are typically tolerated only where more conventional approaches are genuinely unavailable, not merely inconvenient (albeit that yet further latitude may be extended to claimants where the justice of the case seems to demand it: see section 6 below). There is here a tension between epistemic impossibility (i.e., records genuinely unavailable or interactions genuinely inseparable) and forensic inconvenience (e.g., where records do or could exist but are deliberately or inexcusably not kept.)^[12]

5. Total Time Claims

Total time claims mirror total cost claims in structure, but apply to delay rather than cost. ^[13] Courts have consistently rejected approaches that merely compare planned and actual completion dates and attribute the whole overrun to a collection of alleged employer risks.^[14]

A recurring weakness lies in the assumption that the baseline programme is realistic. Without rigorous scrutiny of the original programme’s integrity, a total time claim rests on unstable foundations.

From a practical perspective:

• global EOT claims may sometimes function defensively, to resist liquidated damages;
• claims for prolongation costs require far greater precision, given the need to exclude culpable and excusable delays and to locate them precisely in time.

Conclusion:
Total time claims are no less problematic than total cost claims and carry similar risks of wholesale failure.

6. What Happens If the Claim Fails?

Residual and Modified Approaches

Where a claimant fails to meet the strict prerequisites for global or total cost recovery, courts have occasionally resorted to modified total cost,^[15] jury verdict, or apportionment approaches to avoid conferring a windfall on the defendant.

Take the following illustrative example, from the writer’s own experience:

A Contractor made a claim against an Employer for disruption on a total cost basis in relation to a new, multi-storey, bank headquarters development. As so often happens, quantum experts were appointed very late in the day; pleadings in the dispute had closed, and extensive disclosure had been given. A check of the costs incurred by the Contractor for the various elements of work by the quantum expert appointed by the Contractor (the writer) showed a dramatic, and unexplained, discrepancy between anticipated and actual costs for the plastering trade. The Contractor had made no contemporaneous complaints against the Employer about matters which might adversely have affected the costs in that trade. Nor was the Contractor’s pricing for that work low, in any objective sense. When interrogated, the Contractor’s personnel could not initially understand why such a dramatic discrepancy between anticipated and actual costs in that trade should exist. Further probing by the writer revealed that the Contractor had experienced difficulties in carrying out the slip-formed service core. This resulted in an out of tolerance structure. Those discrepancies had, in the event, been taken up by dubbing out and plastering. The problem had sub-consciously been suppressed by those who had resolved it on site, at much greater cost, at the time. An adjustment for this deficiency in performance was made in the writer’s expert report and the remainder excess over anticipated cost claim successfully pursued.

As for apportionment, the Scottish Inner House in John Doyle Construction Ltd. v. Laing Management (Scotland) Ltd^[16] invoked both these concepts in endorsing (at [16]) the lower court’s conclusion at [38] that, even though the global claim as such would fail, apportionment of the loss between the causes for which the employer was responsible and other causes was available according to the relative importance of the various causative events in producing the loss. This was so as long as the employer’s cause was a material cause of the loss, and even where the other causes were non-compensable or at the risk of the contractor (such as cases of truly concurrent delay in the sense that both causes operated together at the same time to produce a single consequence).If, by contrast, the other concurrent cause was the contractor’s fault, an apportioned claim may be inappropriate. Other jurisdictions have not embraced apportionment,^[17] including, it seems, the current of judicial thinking in England in the absence of an express contractual apportionment mechanism.^[18] This is so albeit that apportionment was directed by Salmon LJ (as he then was) in relation to the delay claim in the earlier Peak Construction (Liverpool) Ltd. v. McKinney Foundations Ltd.^[19] something perhaps unsurprising given the then absence of the use of tools such as critical path analysis in the investigation of delay claims. Whether Scottish courts will admit the use of apportionment of even culpable delays in global claims is yet to be definitively decided, but would seem on the cards given its admission in conventional delay claims in City Inn Ltd. v. Shepherd Construction Ltd.^[20] Other, particularly, but not exclusively,^[21] civil law, jurisdictions, seem more amendable to apportionment on the basis of contributory fault, notions of equity, or preventing unjust enrichment of the defendant.

7. Summary and Conclusions

The law continues to recognise that difficulty in quantification should not relieve a wrongdoer from liability. However, global, total cost, and total time claims now operate within a much narrower sphere than they once did.

Managerial, technological, and analytical advances mean that tribunals increasingly expect claimants to particularise causation and loss with precision. As a result:

• conventional claims remain the preferred and safest route to recovery;
• global and total cost claims are exceptional tools of last resort;
• claimants pursuing such claims must expect intense scrutiny of estimates, records, and performance; and
• defendants are well‑advised to identify alternative causes and claimant inefficiencies.

Where global, total cost, or total time claims are pursued, claimants should proactively identify and concede those elements of loss for which they are responsible and claim only the balance. Failure to do so exposes the entire claim to collapse.

Nevertheless, global, total cost, and total time claims remain legally viable.

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References

[1] McGregor on Damages, 22nd Edition, Sweet & Maxwell, 2024, Chapter 11.

Cf. Griffin v. Colver 16 NY 489 (1858) for a seminal New York case, in which Selden J for the Court of Appeals of New York said, at pp. 494-5:

‘The damages must be… certain, both in their nature and in respect to the cause from which they proceed.’

[2]See, for example, Foaminol Laboratories Ltd. v. British Artid Plastics [1941] 2 All ER 393 in which Hallett J said, in relation to a claim for loss of goodwill not precluded from recovery:

‘There are many cases in which the quantifying of the pecuniary loss is extremely difficult and the judge has to do the best he can. Here, however,…I have no material which enables me to put any figure at all upon that pecuniary loss…’

Cf. Nestlé v. National Westminster Bank Plc [1994] 1 All ER 118; the claim for loss of interest by reason of the absence of improved credit control in The Salvage Association v. CAP Financial Services [1995] FSR 654 (successfully challenged on some of the findings of fact at 1993 WL 13005057). Whilst the claim was in any event too remote, the evidence was, according to Thayne Forbes J at p. 684: ‘…much too speculative and insufficient to prove such a claim.’

[3] Chaplin v. Hicks [1911] 2 KB 786, per Vaughan Williams LJ, at p. 792.

Cf. Fink v. Fink [1946] 74 CLR 127, at p. 143, in which Dixon and McTiernan JJ. said:

‘Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages’;

Brirek Industries Pty Ltd v. McKenzie Group Consulting (Vic.) Pty Ltd. (No. 2) [2015] VSCA 185, at [43].

[4] See, for example, John Sisk & Son Ltd. v. Carmel Building Services Ltd (In Administration) [2016] EWHC 806 (TCC), from [47].

[5] For a consideration of the differences between such claims, see Franco Mastrandrea, Localised Delays: The Poor Relation in Construction Claims?, [2023] The International Construction Law Review 112.

[6] See, for example, Wharf Properties and Another v. Eric Cumine Associates and Others (1991) 52 BLR 1, PC.

Cf. John Holland Construction & Engineering Pty. Ltd. v. Kvaerner RJ Brown Pty. Ltd. and another (1997) 82 BLR 81; Alexanderson Earthmover Pty. Ltd. v. Civil Mining & Construction Pty. Limited [2020] QSC 122; TTJ Design and Engineering Pte Ltd. v. Chip Eng Seng Contractors (1988) Pte. Ltd. [2011] SGHC 12.

[7] See, for example, British Airways Pension Trustees Ltd. v. Sir Robert McAlpine & Sons Ltd. (1995) 72 BLR 26, per Saville LJ at p. 33I-34C.

[8] (1967) 5 BLR 121, at p. 136.

[9] (1985) 32 BLR 51, at p. 102.

[10] (1997) 82 BLR 81.

[11] See, for example, Propellex Corp v Acting Secretary for the Army 342 F3d 1335 (Fed Cir 2003).

[12] Thus, it was noted by the Court of Claims in WRB Corp. et al v. United States 183 Ct. Cl. 409 (1968) that the contractor’s only excuse for the failure to maintain accurate cost records during performance was that it did not expect to become involved in litigation over the project, concluding at p. 426 that that ‘…was a feeble justification for taking refuge in the total-cost approach.’

[13]For a decision considering this approach see Ipex ITG Pty Ltd. v. Melbourne Water Corp. (No. 3) [2006] VSC 83, setting out at [26] its affinity with a total costs claim and the steps in such a claim, and concluding, at [29], that a similar attitude underlay the reluctance of the Court to permit those cases to go forward unless a more conventional form of presentation is shown to be unavailable or impracticable.

Cf. CIMIC Morningstar Investments Ltd. v. Chandos Construction Ltd., 2026 BCCA 2; French Construction, LLC v. Department of Veteran Affairs, 2022 WL 3134507.

[14] See, for example, Bruno Law v. United States195 Ct.Cl. 370 (1971), noting, at p. 382:

‘‘(The plaintiff contractor) simply takes the original and extended completion dates, computes therefrom the intervening time or overrun, points to a host of individual delay incidents for which defendant (employer) was allegedly responsible and which ‘contributed’ to the overall extended time, and then leaps to the conclusion that the entire overrun time was attributable to defendant… Such proof of delay is ordinarily as unsatisfactory as the “total cost” method of proving damages. “A ‘total time’ approach is no less susceptible to inaccuracies than the total-cost theory.’

[15] See, for example, McDougald Construction Co. v. Unites Sates 122 Ct. Cl. 210 (1952).

For the sorts of adjustments that may appropriately be made to a total costs claim, see Thalle Construction Co. v. Whiting-Turner Contracting Co. 945 F.Supp. 652 (1996).

[16] [2004] ScotCS 141.

[17] See, for example, the New South Wales Court of Appeal case of Mainteck Services Pty. Ltd. v. Stein Heurtey SA [2014] NSWCA 184.

[18] Such as was provided for, but in which no case based on that express mechanism was properly advanced, in Tata Consultancy Services Ltd. v. Disclosure and Barring Service [2024] EWHC 2025 (TCC), per Constable J at [104].

[19] (1970) 1 BLR 111, CA, at p. 119: See Franco Mastrandrea, Concurrent Causation in Construction Claims, [2009] The International Construction Law Review 75, at pp. 96-97.

[20] [2010] ScotCS CSIH_68.

[21] See, for some common law examples in the broader law, Foundation Co. of Canada v. United Grain Growers Ltd. (1995) 25 CLR (2d) 1; Ribic v. Weinstein (1984) 47 OR(2d) 126; Crescendas Bionics Pte. Ltd. v. Jurong Primewide Pte Ltd. [2021] SGHC 189.

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About the author

Dr. Franco Mastrandrea is a Chartered Quantity Surveyor and Chartered Arbitrator with over 40 years of experience in the construction industry. He has acted as expert on more than 50 international project management, delay and quantum-related disputes.

From London to Australia and Canada to Antarctica, Franco has extensive and diverse dispute resolution expertise. With an established record in drafting, interpreting and applying commercial terms in contracts, he successfully combines both knowledge and experience under traditional cross-examination and hot-tubbing.

Franco’s expert commissions cover a wide range of industries including oil and gas in Australia, Canada, Kazakhstan, North Africa and South East Asia; transport infrastructure in the Caribbean and the UK; power generation, from CCGT to windfarms, in the UK; and numerous building and infrastructure projects around the world.

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