Progressing the claim

Having raised queries and made requests for information, and given due time for the receipt of the same, the claim assessor may conclude the evaluation on the basis of data to hand.

The burden of proof remains with the contractor. The claim assessor cannot be expected to speculate some time after the event as to why, for example, additional resources were employed. This is particularly relevant when details that could have been supplied were not. In this respect, allegations must be substantiated and every opportunity should be given to ensure that facts are verified at the time.

Wholly unsupported details and lump sums or claims valued on the basis of anticipated cost set against actual costs are not generally acceptable evidence of actual additional expense caused by events for which the employer is responsible. In such circumstances, the claim assessor should determine an evaluation based on details to hand.

Failure with regard to the timely or adequate provision of necessary information is justification for the claim assessor to complete the evaluation using only the information made available, in accordance with the conditions of the contract. It is also justification for deductions to be made to finance charges if the late information has delayed payment.

Failure in this respect by the contractor may also lead to a refusal to pay such expense in cases where delay has genuinely prevented or substantially prejudiced the investigation of any claim by the claim assessor.

However, it should be remembered that an adjudicator or arbitrator is usually given full powers to open up and review all opinions, decisions, certificates and so on. Therefore, if information is provided after the final account has been prepared, this must be considered by the claim assessor when advising the client on potential liabilities in any adjudication or arbitration.

Having concluded the recommendation on the above basis, no further detailed review need be progressed until reasonable data is to hand. However, attempts at resolving disagreement over the valuation of loss, expense or additional cost may be undertaken, bearing in mind the option of referring the dispute to adjudication or to arbitration.

Extra-contractual claims

Only claims falling within the circumstances and conditions stated in a contract can be reimbursed under the contract. All other claims must be considered contractually invalid for the purpose of ascertaining loss and expense or determining additional cost.

Contractors, on occasions, include within their claim matters that can only be dealt with as damages for breach of contract or damages arising out of the negligent behaviour of one of the client's consultants. Such matters must be struck out of the ascertainment or determination. The contractor's only means of recovering such damages is to bring a legal action against the employer or the consultant. If the contractor insists on progressing such matters, the client should be given appropriate advice on defending or settling the claim.

One example of such an extra-contractual claim would be a claim based on constructive acceleration, where the contractor argues that it was left with no reasonable option but to deploy additional resources in order to reduce the effect of liquidated damages at a time when, in fact, an extension of time should already have been granted.