Causation in English Construction Law: Time for a Re-statement?

David Sawtell

July 2021

A paper presented to the Society of Construction Law on 8th June 2021.

This paper considers the extent to which it is possible to set out and re-state the principles of causation as operating in construction law. It considers whether those principles identified are ascertainable, are commonly accepted, and whether they form part of English contract law or represent rule sets that are typical to construction law contracts. The paper examines the Restatement programme by the American Law Institute and the similar exercise led by Lord Burrows. It goes on to analyse the decision in Beattie Passive Norse Ltd v Canham Consulting Ltd to illustrate how causation operates in a construction dispute. The author offers a tentative suggestion of what a re-statement of causation in construction law might resemble and questions whether now is the time for a re-statement.

Introduction: is it all a matter of common sense? – Thesis question – Structure – Part I: What is a Restatement? – Part II: Beattie Passive Norse Ltd v Canham Consulting Ltd – Part III: the outline of a re-statement of causation in English construction law – Analysis: the extent to which a re-statement exercise is possible – Conclusion: is it time for a re-statement?

The author: David Sawtell is a barrister practising from 39 Essex Chambers.

Text: 28 pages