Progressing the claim

In the event of an apparently valid claim being submitted, it is for the claim assessor to carry out the following, as required by the contract concerned:

• identify the claimed circumstances as notified;
• determine the circumstances actually causing the events on site;
• evaluate the effects on resources, including determining whether the effects are too remote from the cause;
• ascertain or determine the financial evaluation; and
• report on the claim.

In ascertaining loss or expense, the claim assessor should seek to obtain as much evidential demonstration as possible that the loss in question has in fact been suffered. Often, even following an analysis of all available information, there may be some doubt. In such cases, if the claim assessor is satisfied that he or she has all available information, and is satisfied that it is not the contractor's fault that any further information is not available, the assessor should proceed to include the amount in the next interim valuation, if there is a higher chance than not that the loss has in fact been incurred (see Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd [1999] Section 4.2.2.3 of the old Surveyors' Construction Handbook).

In ascertaining the loss or expense the claims assessor is not required to be certain that the loss or expense has been incurred. They should bear in mind that the ultimate dispute resolution tribunal will decide any litigation or arbitration on a balance of probabilities and at that stage that tribunal will (only) have to be satisfied that the contractor probably incurred loss or expense as a result of one or more of the events listed. Bearing in mind that one of the exercises which the architect or quantity surveyor may do is allow loss and expense, which has not yet been incurred but which is merely "likely to be incurred"; they cannot be certain precisely what will happen in the future but they need only to be satisfied that the loss or expense will probably be incurred. See Walter Lilly & Company Ltd v Mackay & Anor [2012] EWHC 1773 (TCC).

See the detailed checklist for the evaluation of claims.