Inadequately Expressed Claims
The object of any claim is to convince the party responsible for providing a decision or determination that the claimant has the right to be compensated in ether time or money for the event from which the claim arose. The claimant has the obligation to prove that his claim is just and the standard of proof required to do so is based upon the ‘balance of probabilities’. If the claim does not fulfil these requirements, there is a very good chance that it will fail because the claimant has simply not adequately demonstrated his case.
I have recently produced an assessment on behalf of the Employer for a Contractor’s claim for an extension of time arising from the late nomination for the supply of the interior lighting fixtures, which were included as a provisional sum on the Contract. This claim is a very good example of an inadequately expressed claim. I will explain why by way of some examples.
The claim narrative says the same thing in several different ways in different parts of the narrative. Ok, this is just tedious for me to read and the only negative aspects here are that it shows that the Contractor does not have much idea when presenting his claim, his lack of professionalism by doing this this sort of thing does not however elicit much sympathy from me. My advice here is to make your point well, make it clearly and make it once.
The narrative does quite a good job of ‘telling the ‘story’ and is well substantiated by the inclusion of exhibits from the project records. It however relies purely on the facts demonstrated by quotations and extracts from the records and offers no explanations or conclusions as to what the bare facts mean. This leaves me to draw my own conclusions, which is dangerous because my conclusions may very well not be the same as the Contractor’s. Whilst the records should certainly be used to establish the facts, my advice is to offer additional explanations, summaries and conclusions to tell the reviewer what he or she should be thinking at each stage of the narrative.
The Contractor uses several clauses from the Contract to demonstrate his entitlement when only two clauses are relevant. Again, providing that he has at least relied on the actual clauses that do provide entitlement, this falls into the annoying rather than dangerous category. My advice is if it is not relevant then don’t include it.
The delay analysis programme included with the claim to demonstrate the effect of the late nomination on the Time for Completion seemed to me, as a non-expert delay analyst, to be simply wrong at a basic level and the narrative offered no information as to the logic behind it and how it had been created. Presumably, the Contractor thought that it made sense or he would not have submitted it, but without the benefit of some form of explanation I certainly could not see how it could work and it is not my job as the respondent to go looking for evidence to support the claimant. My advice here is to ensure that any supporting document such as calculations, programmes and the like are explained clearly in the narrative.
Although, based upon my experience, I had a pretty strong ‘gut’ feeling that the Contractor was entitled to some additional time, it is certainly not my job as a respondent to prove his case for him. My conclusion therefore was that yes, the nomination was late and yes, in such circumstances the Contractor is entitled to an extension of time if the late nomination delayed the Time for Completion. However, as the Contractor had not adequately proven that the delay actually did affect the Time for Completion, my recommendation was that no extension of time should be awarded, because the claimant had not proven his case.
The moral of this tale is to ensure that your claims are presented in such a way that they will prove your case.
Subscribe to receive expert commentary on contracts and claims
If you have enjoyed this article and found it interesting, subscribe to our mailing list to receive more great technical articles, plus relevant industry news for the aspiring construction claims professional.