Cases - Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd

Record details

Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd
66 ConLR 119
Construction – litigation – loss and expenses – ascertainment of loss and expense – standard of proof – civil standard of proof

This case confirms that the standard of proof to be applied by those ascertaining loss and expense should be equivalent to the standard applied by judges assessing damages in civil litigation and not the standard of strict proof applied by judges in criminal trials.

There had been an argument in respect of the Joint Contracts Tribunal (JCT) Standard Form of Contract as to whether 'ascertainment' of loss and expense should be given its literal dictionary meaning of 'finding out for sure'.

In this case, the claimant had made a claim for an extension of time and for loss and expense. A number of the heads of claim were clearly valid, but the quality of evidence presented to prove cause and effect was very poor. HH Judge John Hicks QC nevertheless decided that if he was satisfied that there was an entitlement, he should assess the quantum on the basis of the evidence before him.

Potential claimants should not take this case as an authority for justifying laziness. Numerous cases have demonstrated that a valid claim supported by high-quality contemporaneous records, properly analysed, will achieve much better results than one supported by poor evidence. Indeed, the ability to prove one's case is often the trigger for achieving a satisfactory settlement without the need for litigation.

This case also contributes to the argument as to who owns the float in a programme. HH Judge Hicks said:

'Six sub-contractors, each responsible for a week's delay, will have caused no loss if there is a six-weeks' float. They are equally at fault, and equally share in the 'benefit'. If the float is only five weeks, so that completion is a week late, the same principle should operate; they are equally at fault, should equally share in the reduced 'benefit' and therefore equally in responsibility for the one week's loss. The allocation should not be in the gift of the main contractor.'