Progressing the claim

Notification under the contract

To trigger the claims mechanism under the contract, formal written notice will usually be given by the contractor. Note that if the contractual procedure is not satisfied, the contractor may be deprived of any entitlement at all. (See City Inn v Shepherd Construction Ltd [2003] ScotCS 146 (20 May 2003) and WW Gear Construction Ltd v McGee Group Ltd [2010]. See also Anglian Water Services Ltd v Laing O’Rourke Utilities Ltd [2010] EWHC 1529 (TCC)) and Walter Lilly & Company Ltd v Mackay & Anor [2012] EWHC 1773 (TCC).

Responsibility for determination

It is the responsibility of the architect/contract administrator or engineer to form an 'opinion' as to the validity of a claim. However, under the Joint Contracts Tribunal (JCT) Standard Building Contract With Quantities 2011 (JCT 2011), the architect/contract administrator may instruct a quantity surveyor to ascertain the evaluation of sums incurred (clause 4.23). Under the Institution of Civil Engineers (ICE) Conditions of Contract Measurement Version (7th edition), it is the responsibility of the engineer to determine the amounts due. In practice, this duty is again often delegated to a quantity surveyor.

Full ascertainment or determination is not usually practical until the completion of the relevant trade or element of the works. Even so, an initial response should be issued. If only partial ascertainment or determination can be made, then that should be done pending receipt of further information.

It should be remembered that the objective of ascertainment is to reimburse the contractor for loss or expense that it has incurred by reason of a matter for which the employer has accepted responsibility. A claim by a contractor should not be seen as an attack on the employer or on the employer's team.

It is usual for the contractor to prepare details of his loss and expense incurred for the consideration of the quantity surveyor. This is usually done voluntarily, with the aim of ensuring that the quantity surveyor considers all of the relevant aspects of the contractor's loss. The submission also usually seeks to influence the quantity surveyor's methodology in ascertaining the loss or expense. The costs of preparing such a submission if done voluntarily are not recoverable as part of the contractor's loss or expense.

It is the responsibility of the architect or engineer (or if so delegated, of the quantity surveyor) to ascertain the loss or expense once notice has been given. In the event that the contractor does not make a timely claim for loss or expense, then the quantity surveyor will have to create his or her own checklist of items for consideration (see Section 4.2.4.3 of the Surveyors' Construction Handbook). A useful template for this is provided in the appendices to Section 2 of Part Four of the Handbook.