When you need to prepare a construction claim for the first time, it can be daunting, especially for those without legal expertise. Even seasoned experts can struggle. Understanding the key steps involved makes all the difference and significantly improves your chances of success.   

In this blog, we examine the basics of preparing a construction claim. We’ll provide help on how to gather evidence, articulate your damages, and effectively present your case. 

What Should You Include in the Claim? 

When pursuing a construction claim, the contract serves as the bedrock upon which your case is built. It outlines the agreed scope of work, payment terms, variation procedures, and liability allocations.  

To successfully pursue a claim, it’s essential to provide strong evidence that you are entitled to compensation. 

A successful claim will include: 

• Cause — The event that has given rise to the claim, which is usually a statement of fact. 

• Effect — It’ll be necessary to show that an event caused the effect forming the basis for the claimed compensation. 

• Entitlement — Demonstrate that the event on which the claim is based is something referenced in the contract or law, and provides entitlement to the claimant. 

• Substantiation — This is the evidential basis for proving, to a reasonable level, the accuracy all statements made, points relied on, etc. 

Always Reference The Contract

The contract is the cornerstone of any construction project. By thoroughly understanding and referencing its terms, you can build a strong case for your claim. This in turn increases your chances of a successful outcome.  

To successfully recover additional time and costs, it’s essential to meet the specific requirements outlined in your contract. Many contracts include strict deadlines for filing claims. Failing to comply with these timeframes can significantly weaken your claim or even lead to a loss of entitlement. 

This is particularly important for NEC contracts. Under NEC, strict adherence to contractual timeframes is a ‘condition precedent’ to entitlement. If you don’t meet these deadlines, the original ‘prices, the completion date, or a key date’ may remain unchanged. 

These time bars are also crucial to ensure fairness and efficiency in the dispute resolution process. Be aware of time bars in your contract and act within the prescribed timeframe. If you have to prepare a construction claim, the claim may be lost if time-bars are missed. 

 Here are some examples: 

• Clause 4.20.1 of the JCT Design and Build 2016: This sets out an obligation for the contractor to notify the employer ‘as soon as the likely effect of a relevant matter… becomes (or should have become) reasonably apparent’. 
• Clause 61.3 of the NEC4 ECC Option A: This sets out an obligation for the contractor to notify the project manager of an event believed to be a compensation event ‘within eight weeks of becoming aware that the event has happened’. 
•  Clause 20.2.1 of the FIDIC Yellow Book 2017: This sets out an obligation for the claiming party to give a notice to the engineer ‘as soon as practicable, and no later than 28 days after the claiming party became aware’. 

Substantiation: How to Present Your Evidence

It’s essential to provide adequate substantiation of cause, effect and entitlement. In order to succeed, you will need credible evidence to support your claim. This involves gathering and organising documents, records, and other materials that prove the validity of your arguments.  

When presenting your evidence, ensure it is clear, concise, and directly relevant to the specific issues raised in your claim.  

As a framework to follow, Construction Claims and Responses: Effective Writing and Presentation by Andy Hewitt suggests a submission should consist of two parts: 

1. The narrative. This deals with the details of the project and sets the circumstances of the claim. It demonstrates the effects of the claim and explains the basis of any supporting documents. These should help demonstrate the effects or quantum of the claim. 
2. Appendices. These contain documents such as programmes, calculations, photographs and project records. They support, illustrate and substantiate the claim. 

By understanding the key elements of a construction claim, referencing the contract, adhering to time bars, and effectively presenting evidence, you can increase your chances of a successful outcome.   

This article was written by Luke Chamberlain. 

If you are preparing a construction claim, taking advice from a legal or claims professional will help ensure you get the guidance and help you need for success. If we can help, do get in touch – you will almost certainly find one of our introductory courses helpful.