Construction Claims and Responses: effective writing and presentation

By Mr. Andy Hewitt

Why is it necessary to produce a fully detailed and professionally presented claim
or response?
An inadequately expressed claim will at worst result in rejection or at best will
result in delay while the party responsible for determining the claim requests
additional particulars. Remember, it is the claimants responsibility to prove that
the claim is just. A response that does not set out adequate reasons for the
determination runs the risk of either party elevating the matter to a dispute, thus
incurring the parties in needless expense and time.

The Essential Elements of a Successful Claim

Cause

Effect

Entitlement

Substantiation

The Cause is a factual explanation of what happened.

The Effect is how the cause affected the time for completion or contract price.
The Entitlement provides the claimant with the right to make a claim and is usually
contained within the contract, or occasionally provided by law.
Substantiation is required to demonstrate that assertions made or facts relied on within
the claim are accurate and correct and is usually provided by including copies of the project
records within the claim.
Failure to include all of the above within a claim could be fatal to the claim.
Failure or address all of the above within a response or result in the response
being disputed.

Key Points for an Effective Claim or Response

Key Point No. 1 Make the reviewers job as easy and as pleasant as
possible
If you make the reviewer's job difficult or unpleasant, he or she is unlikely to be sympathetic
to your claim. Ways in which this may be achieved may be found later in this presentation.
Key Point No. 2 Ensure that the claim or response document is a standalone document
No reviewer wishes to spend time searching the records to verify the claim or response and
in some cases will refuse to do so.
At best, the reviewer will be unsympathetic to an inadequately expressed document, at
worst, a claim may be rejected as not proving its case, or a determination may be elevated
to a dispute.
Key Point No. 3 Assume that the reviewer has no prior knowledge of the
project

It is not always the case that a claim or response document will be reviewed by someone
with intimate knowledge of the circumstances and this will certainly not be the case if the
matter proceeds to a dispute or arbitration.
It is dangerous to assume that the reviewer has the same knowledge as the person
preparing the claim or response and even if they do, they may not have the same opinions.

Presentation of the Claim or Response

Ensure that the submission document is well presented
A professionally presented document illustrates the professionalism of the party who has
prepared it. A badly presented document will do the reverse. It is necessary to inspire
confidence in the submission.
Ensure that the document is user-friendly
This makes the reviewers job more pleasant and elicits sympathy, rather than the reverse.
Present the narrative and appendices in separate volumes. Provide labelled dividers
between sections and appendices. Use suitably large fonts, line spacing and margins in the
narratives.
Use the narrative to lead the reviewer to a logical conclusion
You must make conclusions within the narrative. If you leave the reviewer to make his or her
own conclusions, they may not be the ones that you were intending. A narrative should tell a
story so that a person with no prior knowledge of the circumstances may arrive at a logical
conclusion, which is the one you were seeking.
Use the narrative to explain other documents attached as
substantiation or in support of the narrative.
Provide full explanations of programmes, calculations, financial calculations and the like that
are contained in the appendices, so that someone with no prior knowledge of the project,
circumstances or the type of other documents may fully understand them.
Ensure that wording, titles and the like included in supporting
documents are consistent with the narrative.
If, for example, the narrative refers to additional payment but the calculation sheets are
labelled cost calculations this firstly confuses a reviewer and secondly, exhibits a lack of
professionalism of the person and company who has prepared the document. Any negative
perceptions in this regard may influence a reviewer into thinking that if the document is not
well presented, then it may not have merit.
Ensure that the logic contained in supporting calculations, programmes
and the like is explained clearly.

The person reviewing programmes, quantities and financial calculations may not be an
expert in these disciplines, so it is necessary to use the narrative to guide the reviewer
through the logic and to provide an audit trail, so that they are fully understood.
Ensure that statements made are substantiated by reference to the
project records or other documents and include copies of such
documents as substantiation.
Just as a lawyer does not go to court without proof and evidence to support his case, a claim
or response must prove that statements made and assertions made therein are true.
Take care with prose, grammar and punctuation and ensure that the
narrative is easily read and properly understood.
Correct grammar and the like will add credibility to the claim or response and support the
fact that it has been prepared in a professional manner. Misunderstanding of points made
may influence the outcome negatively.
Avoid the use of acronyms and abbreviations.
Acronyms and abbreviations may confuse the reviewer and lead to misunderstanding. If the
project records include acronyms, include definitions in the claim narrative.
Keep the writing style simple and direct. Avoid legalese and
unnecessarily complicated language.
Complicated language may lead to misunderstanding or confusion of the points being made.
The object of the claim or response is to be properly understood, not to impress a reviewer.
Ensure that references to the parties within the narrative are
unambiguous.
To avoid misunderstanding, always refer to the parties either by name or by designation
such as the Contractor, the Employer, the Architect etc. or use their company names.
When possible, use the actual wording of clauses rather than
paraphrasing their meanings.
Quotations from the contract may be used to great effect in a narrative. The use of actual
wording from the contract ensures that the reviewer understands that the intended meaning
of the clause has not been manipulated to support a case.
Identify quotations correctly and consistently.
Direct quotations from the records or contract may be used to great effect to support the
claim and to help to tell the story. When quoting from the records or the contract, ensure
that the reviewer knows that it is direct quotation by the use of quotation marks or the like.
If incorrect spelling or grammar is contained in the document being quoted from, you must
include it exactly as written.

Ensure that the submission document is well ordered and indexed to

enable a reviewer to quickly find documents.
Remember that we need to make the reviewers job as easy and as pleasant as possible.
Labelled dividers with the appendices will help to achieve this.
Present reference material and documents used as substantiation in a
separate volume to the narrative.
If the reviewer is able to read the narrative and at the same time have the appendices open
for reference and verification, it will make his or her job easier and more pleasant.

Ensure that a 3rd-party review is carried out before finalisation of the

document.
Remember that the document should be easily understood by someone not familiar with the
circumstances.
Also be aware that when a person proof reads something that they have written themselves,
they often read what they think is written, rather than what is actually written.
A review by a colleague or 3rd party will pick up mistakes and also highlight areas that may
need to be improved upon for a proper understanding.

The Narrative
The following is a suggestion of the sections to be included within atypical claim
or response:

Front cover

Contents

Executive Summary: Summary of the document maximum 2 pages

Statement of Claim: Brief details of the contract, project, nature of the claim,
circumstances giving rise to the claim, cause, effect and entitlement

Definitions, Abbreviations and Clarifications

The Contract Particulars

The Method of Delay Analysis

Details of the Claim for an Extension of Time : Cause, effect, delay analysis,
entitlement

Details of the Claim for Additional Payment: Cause, effect, entitlement

The Appendices
The following is a typical list of items to be included in the appendices in support of the
narrative:

Exhibits: Letters, minutes, site records, etc.

The Baseline Programme Delay Analyses Programmes

Drawings

Photographs

Cost Calculations

Substantiation of the Cost calculations: Labour and plant records, quantities,

payroll, invoices, etc.

Responses and Determinations

Everything that applies to the claim applies equally to a response document. In summary the
main points are:

User friendly

Standalone document

Lead to a logical conclusion

Professional presentation

CEES

Q1. What are the essential elements of a successful claim or response

document?
The essential elements of a successful claim or response document are:
Cause

Effect

Entitlement

Substantiation

Q2.What are the three key points for an effective claim or response?
The three key points for an effective claim or response are:
1. Make the reviewers job as easy and as pleasant as possible
2. Ensure that the claim or response document is a stand-alone document
3. Assume that the reviewer has no prior knowledge of the of the project