Claims – Getting it Right

I have performed assessments of several claims on a large project on behalf of the employer and consultant’s teams and most of the assessments have had to go through two or more revisions. The reason for this is that after the initial claim assessment, which was made based on the information the Contractor submitted with the claim, was issued, the Contractor invariably did not agree with it and provided additional information or explanation. The Engineer has a responsibility to take this into account and this additional information obliged me to revise the assessments. Sometimes it has taken several months to elicit all the information from the Contractor and to conclude the matter.

The point I wish to make about this is that if the Contractor had provided all the information and made his arguments clearly within his claim in the first place, the matter could have been settled within weeks rather than months. Undoubtedly, the Contractor would have had to put in some extra effort when preparing the claim, but ultimately the time taken to prepare the additional particulars probably took him more time to prepare than it would have done had he dealt with these matters within the original claim.

So, how can you avoid this with your claims?

  1. Ensure that the claim is comprehensive and deals with all matters pertinent to the claim;
  2. Ensure that statements made and facts relied on in the claim are all substantiated;
  3. Think about the arguments you would make if you were reviewing the claim and deal with them within the claim;
  4. Ensure that someone with no knowledge of the claim reviews it before it is submitted. If this person either does not understand something or would not make an award, you need to make some changes;
  5. Ensure that the claim is a stand-alone document so that the reviewer has everything needed to make a proper assessment.

In other words, get it right first time!

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Comments

Leave a comment 3 Reader Comments
  1. Written by
    Dave
    on

    One of my clients once said to me that an imperfect claim that wins something is far better than a perfect claim that wins nothing

  2. Written by
    Dave
    on

    Winning claims due to Employers acts of prevention is not about proving beyond a shadow of doubt, its not criminal law we are dealing with, even though you consultants think all contractors are criminals, its about probability that the act of prevention has impacted the Contractors ability to perform efficiently and economically, ergo, the hoops that consultants put contractors through to prove beyond doubt that they are entitled to something is excessive and largely counterproductive. You have the records too you know. Just own up and admit you’ve impeded the contractors progress. It would be even better if you provided a proper design at tender stage so that contractor has half a chance at getting the tendered contract duration & price correct.

  3. Written by
    Andy Hewitt
    on

    Dave,
    It sounds as though you are speaking from the heart and I know where you are coming from – I have many t-shirts. Please do not put me in the ‘you consultants’ category – we just happened to be working for the employer on that particular project.
    I totally agree with your comments and yes, some consultants do unreasonably expect to see the case proved beyond reasonable doubt, rather than on the balance of probabilities, which is just them trying to avoid putting their necks on the block and avoid making a decision. On this occasion however, our brief when reviewing the claims was to be fair and reasonable, rather than defensive, so I was definitely not looking for reasons to avoid recommending an award.
    Bearing in mind the onus is on the claimant to prove his case, if the contractor submits an inadequately expressed claim, it is not the job of the respondent to do the contractor’s job for him and to try to find reasons to make an award. The point that I was trying to make is that whilst we did eventually make an award, it was only during our review process that we were able to illicit all the necessary information from the contractor. Had he provided this in the first place with his initial claim, it would have saved a lot of time and effort and the award would have been made much earlier.

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