September 9, 2024

Construction Claims - Key Points to Consider

Drafting construction claims can be a daunting task. Here are some key points to consider to get you started on the right track

Presentation

When presenting a claim, you must make it as easy as possible for the receiver to review it. Well-presented, well-structured and user-friendly claim submissions will go a long way to achieving this.

Claim submissions should ideally be presented in two volumes where:

Volume 1 will contain the story or narrative of the claim, which sets out the circumstances of the claim, demonstrates the effects of the claim and outlines the basis of any supporting documents.
Volume 2 will include appendices containing supporting documents.

If the claim is poorly put together, the submission is off to a poor start. To be judged professionally, a submission must:

Have a good quality, professional-looking cover
A contents page that helps the reviewer quickly navigate
Clearly labelled tabs and dividers to separate the various sections
Spacious layout
Easy-to-read font
Ensure the various sections of the submission are sequenced logically

Easy-to-read claim narrative

The narrative must be drafted in a way that’s easy for the reviewer to read and understand. The following are some points that should be considered:

A good claim submission should flow and be easily readable and understood. It needs to have a beginning, a middle and an end. The beginning will set the scene for the reviewer. The middle explains the event that has occurred. The ending will be a logical conclusion in which relief under the contract and quantum are summarised, explaining to the reviewer what the outcome of the claim or response should be.
The use of abbreviations should be avoided, or if used, their meaning should be explained when first used.
Avoid legalistic language. Be mindful of your audience, who may not have a legal background. It is better to keep the language simple and to the point.
Avoid ambiguities. When referring to the various parties involved in the project, rather than referring to them as ‘them’ or ‘they’, it is better to refer to the parties in the same way as they are referred to in the contract, such as Employer, Contractor and Employer Representative/Architect etc.
Use quotations in the narrative for maximum impact. If referring to extracts from the form of Contract to prove entitlement, include this extract as a quotation to add more weight.
Don’t draft your claim in a way that the reviewer has to shift through large quantities of other paperwork. A reviewer who is forced to refer to other documents will quickly lose interest in the claim and will not be predisposed to your argument.
Beware of information overload. When referring to other documents in your narrative, ensure that only the essential information from the document is reproduced. Seek to paraphrase its contents within the narrative instead. Lazily dumping whole extracts of other documents will cause the main points of your story to be lost and serve to disinterest the reviewer.

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Getting your claim document proofread by an expert independent observer will ensure you have a submission the reviewer can clearly follow and understand, thus increasing your chances of success.

Standalone claim submissions work best

On receipt of a claim submission, if a reviewer cannot find the documents you refer to, the reviewer will not be well disposed towards your submission. It is important that your claim submission includes everything that the reviewer will need to determine the merits of your claim.

While the claim document may be going to someone who has prior knowledge of the issue[s], the claim submission may well get transferred up the line to others within or outside an organisation who will have difficulty understanding the argument being made if all documents being referred to in the narrative are not included.

Volume 2 appendices should, therefore, include items such as:

Project records referred to in the narrative
Copies of all correspondence
Programmes used to support your case
Copies of drawings referred to in your narrative
Relevant extracts of the Contract relied upon
Calculations used to back up your quantum and copies of invoices etc.
Minutes of meetings
Relevant extracts of the specification

Remember, it's quality, not quantity. Avoid including irrelevant information. You must decide what is relevant and should be used in the submission and what is not relevant and should be discarded. Information overload will weaken the message you are trying to convey and distract the reviewer from that message.

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Get an independent expert to review the claim document before it is submitted.

Many professionals putting together a claim submission will have been deeply involved in the project, have lived and breathed the issues for long periods. This can make it difficult for the claim drafter to notice what is important about the issue being complained of, where they can’t see ‘the wood from the trees’. This could result in the claim drafter failing to clarify matters and missing out on minor but essential information. It is, therefore, prudent to have an independent expert review the submission.

This person should have

little or no knowledge of the issues
have the professional expertise to understand and advise on improvements to be made
put themselves in the shoes of the reviewer and,
after reviewing, advise on unclear sections of the submission, incorrect grammar, inappropriate language, and unsubstantiated statements.
check that the supporting documentation in the appendices is correctly referenced in the narrative
check that the narrative correctly explains the significance of the supporting information and
that cross-referencing between the narrative and the supporting appendices is correct.

Avoid proofreading the claim submission yourself. Getting your claim document proofread by an expert independent observer will ensure you have a submission the reviewer can clearly follow and understand, thus increasing your chances of success.

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