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Construction analysis: The Inner House of the Court of Session upheld a decision of the Outer House at first instance, finding that, under a Standard Building Contract with Quantities for use in Scotland, 2016 Edition (the Scottish SBC terms), the contractor’s entitlement to reimbursement of loss and expense caused by a Relevant Matter was conditional upon it giving notice of the Relevant Matter to the Architect/Contract Administrator and providing the further information required by the contract.

It is important for both employers and contractors to know how to deal with loss and expense claims and to be aware of the practical steps to take—this is especially true in times of economic downturn, when construction activity is reduced and margins are tight, when it is generally accepted that the number of loss and expense claims increase. All the standard forms of construction contract provide a mechanism through which a contractor can claim monies additional to the contract sum. These monies typically compensate the contractor for the effects of changes and other events for which it is not responsible. Each contract contains a procedure which needs to be followed if a claim is to be successful. Unfortunately disputes often arise because contractors fail to read the contract properly and follow the correct procedure. The following measures can, if properly applied, assist both contractors and employers in avoiding prolonged and disputed final account settlements. For more information on the nature of loss and expense claims and the provisions in the standard form contracts please

FORTHCOMING CHANGES: At Budget 2025, the government announced that it will legislate in Finance Bill 2026 (also known as Finance (No 2) Bill 2024–26) for the introduction of new powers for HMRC to tackle fraud by businesses operating within the CIS. Modelled on the VAT measures that restrict input tax recovery where the supplier knew or should have known that the supply was connected to the fraudulent evasion of VAT, the new CIS measures will: • provide for the immediate cancellation of a business’ gross payment status • make a business liable for lost tax, and • allow a penalty of 30% of the lost tax to be imposed on the business, its directors, and other connected persons where it can be shown that the business knew or should have known that it entered into a transaction connected with the fraudulent evasion of tax. Further, the waiting period to reapply for gross payment status that has been immediately removed will be increased from one year to five years. The

Remoteness and foreseeability An injury resulting from clinical negligence does not automatically mean a claimant will be awarded damages by the court. The tort only results in damages if all elements of it are proven: • duty of care • breach of that duty • causation, ie the breach caused loss, and • injury Remoteness of loss and foreseeability are slippery concepts that run through every element of the stages set out above. They are the judicial tools by which common sense and policy are exercised. Failure to treat/loss of chance Where, but for the clinical negligence, the claimant had a chance of recovering from illness or injury without adverse consequences, or had a good chance of a cure, how do the courts approach causation and what damages are awarded? These are matters of causation mixed with remoteness. In Hotson v East Berkshire Area Health Authority, a 13-year-old fell from a tree, fracturing his left femoral epiphysis. At hospital his condition was not

This Practice Note considers in detail when damages for loss of a chance (loss of an opportunity damages) may be recoverable, with reference to the test in Allied Maples v Simmons & Simmons, its further consideration in Wellesley v Withers and the Supreme Court’s clarification in Perry v Raleys. For a summary of the key points in the approach, see Q&A: How, in summary, does the loss of a chance approach work? This Practice Note should be read in conjunction with related content on recovering damages in contract and tort claims, see Practice Notes: • Contractual damages—general principles • Causation and remoteness in contractual breach claims • Damages in tort and negligence claims • Causation and remoteness in tort and negligence claims • Causation and remoteness in professional negligence claims What is the loss of a chance approach? Ordinarily, claimants must prove their case on causation on the balance of probabilities. That is so whether causation turns purely on matters of historical fact, or on

Nature of the award A claimant who is precluded from doing a job they enjoy is entitled to claim loss of congenial employment. This award relates specifically to the loss of enjoyment of their former employment and is quite separate from any direct financial loss. Some judges prefer to factor this into the award for pain, suffering and loss of amenity, but a claim for loss of congenial employment is recognised as a separate head of damage. This head of loss will normally arise in instances where the claimant’s pre-accident job was of an unusual nature, although the claimant need only prove that they took a great deal of satisfaction and fulfilment from their work. While compensation was traditionally made in respect of jobs that involve a vocation or the application of particular skills, such as firefighters, doctors and military personnel, there are now examples of awards in a wide range of occupations,

See also Practice Note: Loss of congenial employment. Case Type of employment Decision Award for loss of congenial employment Foxton-Duffy v Jockey Club Racecourses Ltd [2026] EWHC 571 (KB) Head of Marketing for the West Region The claimant was a talented and creative marketeer who performed at a high level and was knowledgeable and passionate about his work.The claimant was hard-working and had a tendency not to take his annual leave.The court found that, but for his injury, the claimant was more likely than not to have successfully survived a full and fair redundancy exercise and taken on a more demanding role such as National Marketing Director.The court allowed £12,500 for loss of congenial employment. £12,500 Boyd v Hughes [2025] EWHC 435 (KB) Horse rider and stable hand The claimant, who was employed by the defendant as a rider and stable hand, seriously injured her right arm after falling from a cantering horse.The court considered two factors that impacted the level of an award:—firstly, it was unlikely

Loss of consortium describes a claim for the loss of a spouse or civil partner’s companionship, affection, sexual relations and general marital services caused by another’s wrongful act, typically following personal injury or wrongful death. It focuses on the impact on the non‑injured partner, rather than the direct physical or psychiatric injury.Historically recognised at common law in England and Wales, Scotland, Northern Ireland and Ireland, consortium-type losses are now generally dealt with within broader heads of damage, such as loss of dependency, services claims and loss of society.In England and Wales and Northern Ireland, such losses are largely subsumed within Fatal Accidents Act / fatal accidents legislation claims, care and assistance awards and general damages. In Scotland, comparable elements are reflected in claims for loss of society and services under the Damages (Scotland) Acts. In Ireland, loss of consortium is most commonly encountered in fatal injuries and personal injuries actions, with courts assessing the impact on the relationship and family life.The term is mainly a descriptive common law expression rather than a tightly defined statutory concept and is now used for analytical purposes when quantifying relational and dependency losses.

NOTE: On 2 December 2024, the Lord Chancellor announced that the discount rate would change to positive 0.5%. The positive 0.5% discount rate is effective from 11 January 2025. Schedule A1 to the Damages Act 1996 provides that each subsequent review must be started within the five-year period following the last review. For these purposes, a review is concluded when the Lord Chancellor makes the determination as to the rate. Where is it likely to arise? In cases in which the claimant is an employee and there is a claim for future loss of earnings, there is likely also to be a claim for loss of pension. For reasons set out below, a claim for loss of pension is less likely to be available to a self-employed claimant. See also Practice Note: Claims for loss of entitlement to state pension in personal injury claims. Scheme types In order to calculate this loss, the first step is to establish the nature of the pension scheme to which the claimant belongs. There

DR analysis: The approach in assessing cross-undertakings in damages on the discharge of an injunction is essentially compensatory and not punitive. It is therefore to be made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the claimant and the defendant that the claimant would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction. This can be a difficult assessment where a party has lost its ‘first-mover advantage’ as here; the court has to take a view as to what would have happened in the future if something had not happened in the past and make an estimate as to what were the chances that a particular thing would have happened and reflect those chances in the amount of damages it awarded.