Inadequately Expressed Claims | How Not to Write One!

The object of any claim is to convince the party responsible for providing a decision or determination that the claimant has the right to be compensated in either time or money for the event from which the claim arose.

The claimant has the obligation to prove that their claim is justified, and the standard of proof required is based on the ‘balance of probabilities.’ If the claim does not fulfill these requirements, there is a very good chance that it will fail because the claimant has simply not adequately demonstrated their case.

I recently produced an assessment on behalf of the Employer for a Contractor’s claim for an extension of time arising from the late nomination for the supply of interior lighting fixtures, which were included as a provisional sum in the Contract. This claim is a very good example of an inadequately expressed claim. I will explain why by using some specific examples.

The claim narrative repeats the same points in several different ways in various parts of the document. While this repetition is just tedious to read, the only negative aspects here are that it shows the Contractor does not have a good understanding of how to present their claim, lacks professionalism, and this sort of redundancy does not elicit much sympathy from me. My advice here is to make your point well, make it clearly, and make it only once.

The narrative does a decent job of ‘telling the story’ and is well substantiated by the inclusion of exhibits from the project records. However, it relies purely on the facts demonstrated by quotations and extracts from the records and offers no explanations or conclusions as to what these facts mean. This leaves me to draw my own conclusions, which is risky because my conclusions may not align with the Contractor’s intentions. While records should certainly be used to establish the facts, my advice is to offer additional explanations, summaries, and conclusions to guide the reviewer and communicate what they should be thinking at each stage of the narrative.

The Contractor cites several clauses from the Contract to demonstrate their entitlement when only two clauses are actually relevant. Again, providing that the Contractor has at least referred to the correct 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.

The delay analysis programme included with the claim to demonstrate the effect of the late nomination on the Time for Completion seemed, to me as a non-expert delay analyst, to be fundamentally incorrect. Additionally, the narrative offered no information as to the logic behind the analysis or how it had been created. Presumably, the Contractor believed that it made sense, or they would not have submitted it. But without the benefit of some form of explanation, I certainly could not see how it could work, and it is not my job as the respondent to go searching for evidence to support the claimant. My advice here is to ensure that any supporting document, such as calculations, programmes, and the like, are clearly explained in the narrative.

Although, based on experience, I had a strong gut feeling that the Contractor was entitled to some additional time, it is certainly not my job as the respondent to prove their case for them. My conclusion was that yes, the nomination was late, and yes, in such circumstances, the Contractor is entitled to an extension of time if the late nomination delayed the Time for Completion. However, because the Contractor had not adequately proven that the delay actually affected the Time for Completion, my recommendation was that no extension of time should be awarded, as the claimant had not proven their case.

The moral of this story is to ensure that your claims are presented in such a way that they convincingly prove your case on the balance of probabilities.