Progressing the claim

The contractor's claims should be submitted in accordance with the prescribed procedures and fall within the pre-stated circumstances set out in the relevant contract. It is important that the claim is not pre-judged prior to a consideration of the facts and circumstances to a depth necessary to reveal a fair and reasoned view.

The first stage in evaluation is the collation of the facts. It is usually beneficial to prepare a history of key events in list form; this list can be agreed with the representative of the other side to establish the factual elements of the case. There should be a significant degree of agreement on these issues if sound records are available.

The claim assessor should be careful not to agree anything until the accuracy of the information has been verified. If the matter should subsequently end up in front of an adjudicator or arbitrator, a schedule of agreed facts will weigh heavily on their mind. Once the accuracy of information has been verified, the schedule should be signed off to prevent either of the parties subsequently changing their positions.

Once records have been assembled and listed, the consideration of the claim may be progressed in line with the following checklist:

• check that a proper notice was given to the architect or engineer, specifying the circumstances, as soon as it became (or should reasonably have become) apparent that progress of the works, in whole or part, would be, or had been, affected by the stated event.
• there is generally no contractually prescribed form for such a notice. A statement during a meeting that is subsequently minuted will usually suffice. The issue is whether the client was deemed to have been put on notice that the circumstances were or would be likely to cause the contractor to suffer loss or expense for which it would be entitled to reimbursement under the terms of the contract.

• check that the circumstances or events forming the heads of claim are covered by the contract;
• establish the date on which the architect or engineer was originally advised of the facts and circumstances now claimed by the contractor as causing loss and expense or additional cost (i.e., are the issues the same as in the original notice?);
• determine the key dates and events regarding the flow of additional data or other heads of claim (prepare a list of dates and events);
• for claims based on late information, ascertain the planned date on which the instruction or information requested should have been given to the contractor, the date on which it was actually given to the contractor, and when, in reality, it was necessary for the contractor to receive it, having regard to the progress of the works;
• establish the effects of the event on site labour, plant resources and progress on site (other than preliminaries). In particular, consider the following points:
  1. when was the work due to take place?
  2. when did the work take place?
  3. what was the general effect on resources and progress on site?
  4. what was the progress, at the time, of the other operations? Was the contractor already in delay for other reasons? Was this event the dominant cause of delay?
  5. was there any unavoidable disruption or prolongation?
  6. was regular progress affected?
  7. was there a material (i.e., not trivial) effect on progress?
  8. were the circumstances compounded by other problems, such as inclement weather?
  9. were all reasonable measures taken by the contractor to mitigate the effects on site? Was notice of such intentions given to the architect or engineer?
  10. are there ramifications on the critical path, other trades or other elements of the works? (A statement setting down the history of tasks on site will often be helpful);
  11. how have labour and plant levels varied or been affected?
  12. do records support the claimed circumstances?
  13. take a view, with the architect or engineer, of the effect on resources, in terms of additional resources in quantum and weeks, days or hours or other priceable 'quantities', including abatements for the contractor's own problems, according to the 'but for' test;
  14. ensure that there is no duplication with final account items; and
  15. ensure that the effects are not too remote in law from the cause.

Effect on preliminaries items

• identify whether items of a preliminaries nature have been affected; identify what, if any, extensions of time have been awarded for the specific circumstances under consideration.

Financial evaluation

• the effect on resources should be set out in detail;
• check to see whether the sums are recoverable elsewhere within the contract (for example, through variations, dayworks or an increased percentage recovery of overheads due to variations paid at rates inclusive of such);
• check that whether loss or expense has actually been incurred. Inspect wage sheets, revised plant hire agreements or additional payments made to subcontractors, as well as records of standing time or overtime, and the like;
• check that financial and record information has been provided as requested;
• check that documentation and information has been provided by the contractor as soon as reasonably possible, and that the contractor has not delayed the evaluation of the claim;
• determine actual cost for the ascertainment of the claim (for example, wage sheets, hire charge or assessment). All costs should be exclusive of any profit or on-costs and should be after any discount has been deducted;
• finance charges should be evaluated from the date that the loss was incurred to the date on which payment was made (or is due to be made), less any period of delay caused by the contractor's own neglect. See F. G. Minter v Welsh Health Technical Services Organisation [1980];
• alternatively, interest may be payable under the terms of the contract or under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998. However, it is incumbent on the claim assessor to ensure that there is no duplication.

See Concluding the evaluation for details of the next step.