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F. G. Minter v Welsh Health Technical Services


[1980] CA 13 BLR 1

Construction ? litigation ? loss and expenses ? financing charges ? direct

oss and expense ? interest ? interest foregone ? global claims ? recoverability
of loss under a global claim

This case is notable for two reasons. First, it confirms that 'direct loss or expense' should be
construed in accordance with the principles of the first limb in Hadley v Baxendale. Second, it
confirms that financing charges are recoverable as a head of direct loss and expense.

The case is also important in the following respects:

? it confirms that in exercising discretionary powers under a traditional JCT contract, the
architect should not only exercise due care and skill, but also reach decisions fairly, holding
the balance between the client and the contractor. (See also Sutcliffe v Thackrah [1974] 4 BLR
16 at 21);

? it confirms that the building owner under a traditional JCT contract (either directly or via
the architect) is under a positive duty to do all things necessary to enable the contractor to
carry out the work. (See also Holland Hannen & Cubitts v Welsh Health Technical Services
Organisation [1983] 18 BLR 80 at 117);

? it confirms that a programme that highlights with milestones when information is

required from the architect is sufficient to satisfy the JCT requirement for the contractor to ask
for the information at a time that is neither unreasonably distant from nor unreasonably close
to the date on which it is necessary to receive the same;

? under the JCT 63 conditions (which are similar in this regard to the JCT Standard Form
of Building Contract With Quantities 1998 (JCT 98) conditions), an application by the
contractor is held not to be a condition precedent to the contractor's entitlement to an
extension of time, but a breach of contract which the architect is entitled to take into account
when making his or her assessment;

? the judge confirmed in relation to global claims that:

'if application is made ... for the reimbursement of direct loss or expense attributable to more
than one head of claim and at the time when the loss or expense comes to be ascertained it is
impracticable to disentangle or disintegrate the part directly attributable to each head of claim,
then, provided of course that the contractor has not unreasonably delayed in making the claim
and so has himself created the difficulty, the architect must ascertain the global loss directly
attributable to the two causes, disregarding, as in Crosby Ltd v Portland UDC[1967], any loss
or expense which would have been recoverable if the claim had been made under one head in
isolation and which would not have been recoverable under the other head taken in isolation'.

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