The preparation of a construction claim is a structured exercise that proceeds from the identification of entitlement, through the analysis of cause and effect, to the substantiation of quantum. A well-prepared claim sets out the contractual basis of entitlement, demonstrates the factual matters that give rise to the entitlement, links those facts to the consequences alleged, and quantifies the consequences with rigorous reference to the contemporaneous records. A poorly prepared claim does none of these things, and is unlikely to succeed regardless of the merits of the underlying position.
The identification of entitlement starts with a careful review of the contract. The claim must be founded on a specific clause of the contract, or on a recognised legal principle (such as breach of contract or unjust enrichment) that operates outside the contract. A claim that is not properly grounded in the contract or in law will not succeed, however genuinely the claimant believes itself to have suffered loss.
The analysis of cause and effect is the technical heart of the claim. The claimant must show what happened, why it happened, who was responsible, and what the consequences were. Each link in the chain must be supported by evidence — typically documentary evidence supplemented by witness evidence and, where appropriate, expert evidence. A claim that asserts cause and effect without demonstrating it will not survive serious scrutiny.
The procedural requirements of the contract must be observed. FIDIC contracts contain detailed notice provisions: the contractor must give notice of any event giving rise to a claim within a specified period (typically 28 days under FIDIC 1999 and 2017), failing which the entitlement may be lost. The contractor must keep contemporaneous records of the events giving rise to the claim. The contractor must submit a fully detailed claim within the period prescribed by the contract. Each of these requirements is a potential pitfall, and a number of substantial claims have been defeated in arbitration on procedural grounds alone.
The substantiation of quantum requires the application of appropriate methodology to the contemporaneous records. The methodology must be clearly explained and justified by reference to recognised industry practice. The records must be properly identified, properly cross-referenced and properly summarised. The calculations must be transparent and capable of being followed by the tribunal. Where assumptions are made, they must be disclosed and explained.
Presentation matters. A claim that is well-organised, clearly written and properly supported by documents will be more persuasive than a claim of equal merit that is poorly presented. The use of clear narrative, supported by tables, schedules and appendices that allow the reader to verify the figures, is the hallmark of a professional claim submission. Lengthy unstructured prose, with key documents buried in undifferentiated bundles, is the hallmark of a claim that has not been properly thought through.
Our claims experts at Construction Expert Witness assist contractors, employers and their legal advisers in the preparation, evaluation and defence of construction claims across the UAE and the wider GCC. Whether the claim is to be presented in negotiation, in adjudication, in mediation or in formal arbitration, we bring rigorous methodology, deep regional experience and clear presentation to every claim we work on.