The Problem with Inadequately Expressed Claims and Responses
EC Harris’ report Global Construction Disputes Report 2013 cites incomplete and/or unsubstantiated claims as one of the major reasons for construction industry disputes.
A typical scenario that I have experienced on many occasions is when a contractor submits a badly prepared or ‘inadequately expressed’ claim to the engineer for evaluation and the engineer rejects the claim on the basis that the contractor has not proved his case. The contractor, believing that he has good basis for the claim then refers the matter as a dispute. The question to be considered here is, is the engineer acting properly by rejecting such a claim?
As is the case in many such questions, I would say ‘it depends’.
If we take the premise that the onus is on the claimant to prove on the balance of probabilities that his claim is just and he has not demonstrated that this is the case by discussing the cause of the claim, its effect, the entitlement to an award under the contract or at law and has not adequately substantiated all of these matters, then his claim must fail.
The problem however, tends to be exasperated when the engineer provides an equally inadequately expressed response. In such a case, the engineer is encouraging a dispute. In my opinion the engineer has a duty to resolve matters proactively and fairly and, although this does not extend to making in unjustified award, in such a situation his response should be made in such a manner that the contractor is fully aware of the reasons that his claim has been rejected. This, more often than not, means that a fully detailed response is necessary. The contractor then has the option to either provide further particulars to support his claim, or to resubmit the claim in a way that it provides the essential elements to prove his case.
If both parties deal with claims properly and professionally then the likelihood of them being elevated to disputes will be considerably reduced.