Andy Hewitt

how to write a successful claim

How to Write a Successful Claim

When sitting down to write a claim, your purpose is quite simple. You want to convince someone that you are entitled to be compensated, in either time or money, for the event leading to the claim. The obligation is on you here to prove that your claim is a just one and the standard of proof is based upon the 'balance of probabilities'.

If your claim does not meet these requirements there is a very good chance that it will fail. And it will fail because you have not demonstrated your case.

So how you you write a successful claim? We thought we would offer a few tips, using an example of some recent work we did.

On behalf of the Employer, we recently produced an assessment for a Contractor’s claim for an extension of time. The claim arose from the late nomination for the supply of the interior lighting fixtures. These were included as a provisional sum on the Contract. This claim is a very good example of a poorly expressed claim. I will explain why by way of some examples.

The Narrative

The claim narrative says the same thing in several different ways in different parts of the narrative. This is just tedious for the reader and shows that the Contractor doesn't have the skills to write a successful claim. His lack of skill here doesn't elicit much sympathy from me. So how do you avoid this when writing your claims? Make sure that you:

  • 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. But it relies only on facts demonstrated by quotations and extracts from the records. It offers no explanations or conclusions as to what the bare facts mean. This leaves me to draw my own conclusions. This is dangerous because my conclusions may not be the same as the Contractor’s.

Records

At a bare minimum the records should establish the facts. However, my advice is to offer additional explanations, summaries and conclusions to tell the reviewer exactly what he or she should be thinking at each stage of the narrative.

Going back to our example, the Contractor uses several clauses from the Contract to demonstrate entitlement but only two clauses are actually 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.

Delay Analysis

The delay analysis programme included with the claim served to demonstrate the effect of the late nomination on the Time for Completion. Yet it was clear to me - as a non-expert - that it was obviously wrong. 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 more importantly, it is not my job as the respondent to go looking for evidence to support the claimant. My advice here is:

  • Ensure that any supporting document such as calculations, programmes, etc. are explained clearly in the narrative.

Final Thoughts

Based on experience, I had a pretty strong gut feeling that the Contractor was entitled to some additional time. However, 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. Furthermore, 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.

So the moral of this tale? Make sure that your claims are presented in such a way that they will prove your case on the 'balance of probabilities'.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need. 


things contractors get wrong when it comes to claims

Extension of Time Claims | When to Submit?

We have just been appointed by a contractor to prepare an extension of time claim. The contractor exceeded the completion date 3 months ago. And although the employer has caused many delays, the contractor has not submitted any claims for extensions of time yet. Unfortunately, we see this approach by contractors far more than we would like. It often results in a ton of work for consultants like us, but it also has huge disadvantages for the contractor.

Why this is not good practice

We now have to deal with an extension of time claim for 17 employer-caused delay events. This will be a very time consuming and complicated process. Whilst we work to prepare the claim and then give the Engineer time to review it, delay penalties will continue to be deducted from the contractor.

From both a preparation and a review point of view, 17 separate small claims are easier and quicker to review than one large claim for 17 delay events. It would have been much better to submit the claims as and when each delay occurred.

For the same reason, we may not have resources readily available to complete such a large task, so another consultant may need to come on board which leads to further costs.

When presented with a claim for 17 delay events, the engineer will need a long time to review the claim. This will then delay the issue of a response or determination and delay bringing the matter to a close.

If one or two of the heads of claim are not agreed by the engineer, then any entitlement forthcoming for the others will be held up until the contentious issues are resolved.

Some of the delay events happened 10 months ago. Over time, memory grows hazy. Although records should be available to substantiate the facts, claims are best dealt with contemporaneously when memories are clearer.

Had the contractor dealt with the claim early in the contract period, the engineer would receive the message that the contractor is prepared to pursue their entitlement under the contract. In turn, this may have encouraged a more reasonable determination than may otherwise result.

Don't Wait and See

The wait-and-see philosophy of leaving claims until the end of the project almost never works. At this time, the engineer and employer have a completed project. There is little incentive to resolve matters in the contractor’s favour. Plus, it is more than possible that when the project is completed, the person responsible for claims from the engineer’s side may have been moved to a new project. They may be less than enthusiastic about dealing with old issues.

The lesson here is to submit separate claims for each event as soon as possible after the event occurs.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need. 


claim resolution

Claim Resolution | Get it Right First Time

We have recently reviewed several claims on a large project. Most have gone through two or more time-consuming (and costly) revisions. Why? Because following submission - based on information from the Contractor - the Engineer invariably does not agree with it. The Contractor then provides additional information or explanation. The Engineer then has a responsibility to take this into account, so the assessment must be revised once again. Sometimes it has taken several months to elicit all the information from the Contractor and conclude the matter.Read more


evaluation of variations and omissions

Evaluation of Variations on Lump Sum Contracts

I recently presented a Construction Claims Workshop for Claims Class. During one of the many discussions, someone asked about lump-sum contracts and items included in the bills of quantities, but not shown on the drawings.

The question was:

if something is included in the bill of quantities but not required, can the Engineer omit the price included in the bill of quantities for this item?

To provide an accurate answer, I would need to review the contract documents. This is to understand their order of precedence and the precise wording of the contract. However, let's assume the usual situation:

  • The Contractor must construct the works according to the contract.
  • Bills of quantities are stated to comprise only an estimate of the works and may not be relied on.

In this case, the answer is quite simple, but often misunderstood.

Simply put, the bill of quantities is merely a breakdown of the Contract Price. It may exist to evaluate interim payment applications and variations but may not be accurate. Consequently, the scope of works may only derive from the drawings and specifications.

Therefore, if something exists in the bill of quantities but is not shown on drawings or in specifications, it is not included within the Contract Price. The Engineer may not omit something that is not there in the first place.

A good way to argue this case with such an engineer is to ask if you may receive payment for items shown on the drawings but not in the bill of quantities. I am sure that the Engineer would immediately refer to the conditions that state not to rely on the bills and quantities. And inevitably deny your request.

I hope that this answers this often-asked question. If you'd like to read more on this topic, check out a related blog where we look at Omission of Items in the Bill of Quantities, But Not Shown on the Drawings.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need.