Following on from his article ‘Conflict, Claim or Dispute?’, Quantum Associate Director Mark Colman, discusses issues currently affecting construction projects in the Middle East and the key elements required in the development of a successful construction claim.

Claims for additional time and/or costs are generally the norm in any construction contract and should theoretically be easy to generate and submit.  However, any claim must be founded on facts and the claimant must be able to prove the facts with appropriate records.

As any experienced professional involved in the preparation of claims will tell you, the majority of claim submissions are never straight forward and the compilation and substance of many claims can be the main reason for rejection or a failure to deal with them appropriately, which can lead to costly disputes.

Whilst a standard layout of format and structure may be available in each company’s pro-forma library, it can be near-impossible to follow this ‘template’ due the diverse nature of each claim prepared – which begs the question, “can a standard claims template exist?

The key elements to good claim preparation

The aim of a claim is to demonstrate, with records, that (on the balance of probabilities) an entitlement to additional time and/or cost exists under the contract and/or law.

As many industry commentators will testify, the content of the ‘perfect claim’ must include the four key elements (CEES):

  • Cause – the event that has given rise to the claim.
  • Effect – how the event has affected the claimant.
  • Entitlement – the claimant’s right to additional time and/or cost under contract and/or law.
  • Substantiation – the contemporaneous records supporting the claim.

Claims for additional time and/or costs are generally the norm in any construction contract.

The cause and the effect

The cause can be defined as a statement of fact that describes an event giving rise to a claim.  A simple example of cause could be that the employer failed to provide access to the project site in accordance with the agreed date in the contract.

On a typical project, the contractor may observe a great number of negative effects on the programme.  The link between cause and effect is typically more complex to establish and the failure of many claims is that this link is not demonstrated appropriately.  In Wharf [1] for example, the link was described by Lord Oliver as the “essential nexus between the events causing the delays and the delays themselves” and ultimately, the claim in Wharf was struck out because the pleadings failed to link the cause and effect.

If the employer failed to provide the access as above, then you would expect to see the effect as a late start date resulting in a late completion date.  However, would an affect on the completion date and a claim for extension of time (EoT) exist?  In this case, the answer is not necessarily.  A number of considerations must be taken, such as whether cause had an overall effect on the critical path giving rise to a claim for prolongation; or will acceleration measures be instructed giving rise to a claim for additional costs only?

The subjective nature of the effect in a claim will require a clear demonstration of the link between causation and the impact of the event.  Which is when an experienced delay analyst becomes invaluable to the successful submission of a claim.

Entitlement

The entitlement of a claim stems from either express and/or implied contractual provisions or from a breach of contract giving rise to common law damages.  Contract provisions will typically provide a remedial mechanism for recovery of additional time and/or cost.  Using the example above under a FIDIC contract, Sub-Clause 2.1 [Right of Access to the Site] requires the employer to provide access in accordance with the contract date stated and if this is not done then the contractor is entitled to make a claim for additional time and/or cost in accordance with Sub-Clause 20.1 [Contractor’s Claims].  Whilst the mechanism for recovery is clearly defined, it should be noted that 20.1 is a condition precedent to entitlement and any failure to adhere may result in claim rejection.

Claims should avoid the use of legalese and complicated language that requires the reviewer to get out his thesaurus.

Substantiation

Change is almost inevitable in construction projects and so appropriate change management techniques are required.  Detailed records are essential to prove (on the balance of probabilities) that the content in a claim is correct.  Experience shows that a common theme exists on the majority of projects – insufficient or incomplete record keeping.

A contractor will often plead that a particular event occurred and that it had a detrimental effect on his planned work and none of it was their fault so they want (and expect) to be compensated.  However, very often there is a lack of any records to show or demonstrate this, leading to potential costly disputes or the contractor having to accept that it has simply lost its opportunity.

Whilst it could be possible to support a claim with retrospective evidence, this is not a favoured position or one that will have a positive outcome for the claimant.  As such, it is of upmost importance that a claimant establishes appropriate record keeping systems prior to the commencement of any contract.  Furthermore, the adopted system should be stringently maintained for the duration of the works.

Typical records[2] to be kept will vary between projects but generally you should expect competent contractors to have correspondence trails, regular meeting minutes and to keep daily records of weather conditions, manpower, work-front location and activities, P&E, verbal instructions and any restrictions on working.  I would also recommend getting agreement/signatures from the employer representatives where possible.  It is also said that “a picture can speak a thousand words”, so use camera phones and document the photos accordingly!

So…can the ‘perfect claim’ be produced?

It could be said that perfection is unattainable in any profession, however there are certain features of the ‘perfect claim’ to be adopted when compiling a claim submission.

  1. Avoid the two basic errors – too much or too little.

Nothing can be more off-putting for the recipient of a claim submission than when 10,000 pages of the most complex information arrives in 25 volumes.

Indeed, there are many occasions in which I have been sat with a client on completion of a claim ready for submission and subsequently been bombarded with masses of additional information that are requested to be included in the claim.  This is completely understandable when taking consideration of a dire financial situation and the fear of a claim being rejected – but this type of approach would sit firmly in the too much category.

On other occasions, I have come across claim submissions that are so insufficient and lacking any appropriate detail that there is nothing to even consider upon receipt!

Claims should avoid too much or too little information.

  1. Good presentation

A good claim should generally be produced in two volumes.  The first volume should provide the details of the claim in accordance with the key elements described above.  The second volume should provide the substantiation for the claim.

The claim should be user-friendly.  The use of contents, headings and illustrations is advised. It should be formatted and arranged in such a manner that a reviewer can quickly get to the desired page/section of the claim.  The arrangement of the submission should be in a logical sequence.

  1. Simplicity and clarity

The claim should be drafted to allow a reviewer to quickly understand the key issues and written so that the reviewer is able to read the detail as a flowing narrative without having to go back and re-read sentences to makes sense of the claimant’s assertions. In addition to this, the use of abbreviations should be avoided.

The writing should avoid the use of legalese and complicated language that requires the reviewer to get out his thesaurus.  The use of simple and direct language which clearly states the intended meaning and purpose is needed.  This can be particularly important when working in the international markets where the recipients first language may not be that which the claim is written in.

  1. Stand-alone document

The claim should be produced and compiled as a document that can be picked up and read on its own without the need for a reviewer to refer to or search other documents.

A background to the project should be included along with the circumstances behind the claim.  A person who is not close to the project should be able to understand the submission without needing a project workshop.

  1. Completion and compilation of the claim

There is more often than not, a number of individuals contributing to the claim submission. This can obviously lead to a loss of flow in the final claim submission.  To achieve the best outcome for a claim submission, it is often best that an individual takes lead in compiling the final document.  This allows the flow to be maintained. The use of introductions in each section and simplistic descriptions for the detail can also be useful.

Conclusion

In theory, the ‘perfect claim’ can be compiled.  However, there are three important factors to consider, such as:

  • Ensuring that detailed records are kept, maintained, and used appropriately.
  • Making sure the claim contains the four key elements (CEES).
  • Keeping the claim submission succinct, clear and simple.

Whilst this can sound simple to do, in reality the compilation of a worthy submission is a skill that is often taken for granted and the reason why so many difficulties arise when seeking approval of what is considered to be a justifiable claim submission.

To avoid rejection, it’s imperative that experienced individuals are engaged at the onset to avoid costly redrafting and extended approval periods which could have a detrimental effect on cash flow.

Sources: Wharf Properties v. Eric Cumine Associates (1991) 52 BLR 1 and 2 The SCL splits the records into six sections: 1. Programme, 2. Progress, 3).Resource, 4. Costs, 5. Correspondence and administration and 6. Contract and tender documents

Author Profile – Mark Colman

Mark has a 1st class BSc (Hons) in Quantity Surveying and Commercial Management and an MSc in Construction Law and Dispute Resolution. He is a member of the Royal Institution of Chartered Surveyors (MRICS), a member of the Chartered Institute of Arbitrators (MCIArb) and a member of the Chartered Institute of Building (MCIOB). Read more…

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This article is published with the purpose of promoting discussion only. The contents must not be relied upon or applied without first seeking professional advice.