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ELEMENTS OF A
SUCCESSFUL
CLAIM AND HOW
TO WRITE AN
EFFECTIVE
NARRATIVE
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01
Essential
Elements of a
Successful
Claim
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INTRODUCTION
The object of a claim is to demonstrate that on the balance of probability, the
claimant is entitled to compensation and the amount of such compensation. In
the case of a construction claim, the compensation would more than likely
consist of additional time, additional payment or both. The claim must be
demonstrated, substantiated and justified so as to achieve the desired result.
The elements that are absolutely essential to include in a claim or
determination are as follows:
1. Cause
2. Effect
3. Entitlement
4. Substantiation
It should definitely be borne in mind that many worthwhile claims have come
to nothing because these essentials have not been given due recognition by
the claimant.
THE CAUSE
Very simply put, the Cause is the occurrence of the event, which has given rise
to the claim. Typically, this could be:
9. Force Majeure
10. Delay caused by the Employer or other parties engaged by the Employer.
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11. An act of prevention by the Employer, his agents or contractors.
THE EFFECT
For a claim to succeed, it will be necessary to demonstrate that the effect on
which the claimed compensation is based, was in fact caused by the event by
linking the cause with the effect. The Effect of the event is usually a little more
complicated to establish and to link directly to the cause, because this is often
a subjective matter, which requires to be both demonstrated and
substantiated. The following are a few examples of what must be considered
when examining the effect of an event for entitlement to an extension of time
or additional payment:
a. What effect has the timing of the instruction had on the programme?
d. How will the payment for the additional work and any abortive work or
rework be claimed?
f. Will this give rise to entitlement for additional costs for prolongation in
addition to payment for the additional work?
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a. What effect will the timing of the issue of the instruction or information
have on the programme?
e. Are there requirements to mitigate any delay and if so, would mitigation
measures give rise to entitlement to additional payment?
f. Will the late issue of the instruction or information result in idle or down
time of resources?
You will hopefully notice that all the above considerations have been written in
the present tense. This is because the time to start considering the effects of
the cause is immediately when there is knowledge of the event. This is the
point in time that the contract administration procedures should commence to
ensure that notices are sent, records are kept and preparations are made to
submit the particulars of the claim if, in fact, subsequent investigation shows
that there is an entitlement to claim for the identified event.
ENTITLEMENT
A demonstration of the cause and effect of an event will not automatically
contain entitlement to an extension of time and/or additional payment. The
claim will either flow from a remedy contained in the contract conditions, or
from a breach of the contract giving rise to damages under the law and could
possibly fall under both categories. It is of vital importance to set out precisely
on what contractual basis the claim is made.
A substantial part of any contract is the allocation of risk between the parties
and it is therefore necessary to demonstrate that the event on which the claim
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is based is something that the contract, or the law to which the contract is
subject, provides entitlement to the claimant. It is therefore, imperative to state
precisely on what contractual basis the claim is founded. The first place to
check for entitlement is the Contract.
Bearing in mind the two principles that it is incumbent on the claimant to prove
the merits of the case and that we have to do everything we can to make the
reviewer’s job as easy as possible, the claim submission must contain a clear
demonstration of the claimant’s entitlement by reference to the Contract.
SUBSTANTIATION
The last essential element of the claim is substantiation or, in other words,
proving to a reasonable level that all statements made, points relied on,
calculations submitted and the like are correct. Imagine a prosecution lawyer
during a murder trial standing up in court and making a simple statement to
the effect that the defendant is guilty of the crime of which he is accused
because he was at the location of the crime when it took place and that he
didn’t like the victim very much. Is it likely that the jury would take this at face
value and convict the accused on the basis of such a statement, or is it more
likely that they would need some sort of proof of the accusations? The answer
is fairly obvious and the lawyer will consequently take his time to substantiate
each and every one of his assertions by reference to the evidence that he has
gathered to enable him to prove his case.
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CONCLUSION
For a claim to succeed, it is essential to include the following:
5. Remember CEES.
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02
How to Write
an Effective
Claim Narrative
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INTRODUCTION
One of the most common challenges that we, as claims practitioners, often
face is how to write an effective claim narrative. Even experienced claims
practitioners often seem to have difficulty explaining themselves clearly on
paper.
So, this paper explains what you can do to ensure that your claim narrative is
properly understood to ensure that it has the maximum chance of helping your
claim to be resolved quickly and in your favour.
Whilst this paper is related to claims narrative writing, much of the advice given
is also relevant to the writing of responses, decisions, reports and letters.
If:
• the reader becomes bored and loses concentration on the matters at hand
it’s unlikely that you will successfully demonstrate your entitlement. Moreover,
it’s very likely that the person reviewing the claim, will come back to you with
queries, requests for clarification and additional information which will only
serve to delay things.
In order to avoid this, we need ensure that our narratives ‘lead the reader by
the hand’ through the story of our claim and take him or her to the conclusion
that we wish them to reach. We must provide a full understanding of all matters
discussed along the way. This paper will provide advice on how to achieve
this.
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letter is addressed at the time of writing. True, your claim may be reviewed by
your opposite number on the project who has a good understanding of the
events that have taken place, but we cannot be certain that the matter will be
resolved at that level and in any case, even such a person may not have full
understanding of all the details that you need to get across.
The middle of the story is where the action takes place and in the case of a
claim narrative, this is where we explain the events that have occurred and
discuss cause, effect and entitlement. If the narrative author has done a good
job, this will in turn lead to an ending which will be a logical conclusion in
which the entitlement and quantum is summarised. As in all good novels, if this
premise is adhered to, the heroes will hopefully live happily ever after.
USE OF CHRONOLOGIES
Chronologies are a really effective way of relating a “cause” narrative or
explaining what has happened that has given rise to the claim. Basically, a
chronology is telling the story of what happened, as you may have already
guessed, in chronological order. The following is an example of a chronology
that could be used to explain the events leading to a claim:
3. On 24 January 2017, the Contractor had not received the bar bending
schedules and again wrote to the Engineer to advise that if these were
not received by 31 January 2017, the work to the machine bases would
be delayed.
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4. On 1 February 2017, the Contractor wrote to advise the Engineer that
the bar bending schedules for the machine bases had not been issued
and that consequently, resources were standing idle and the work was
being delayed.
The above tells the story neatly and succinctly, but could it be improved upon?
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c. exceptionally adverse climatic conditions,
Let us assume that the claimant is preparing an extension of time claim due to
adverse climatic conditions. Firstly, the entire clause is quite a lot for the
reviewer to digest and secondly, it contains quite a lot of information which is
irrelevant to the specific subject of the climatic conditions. Here is how it could
be reproduced in such a manner to deal effectively with the issue in question:
Where parts of the clause are omitted from quotations, the reader’s attention
should be drawn to this by the inclusion of ‘…’ to indicate the missing passage.
If adopting this method of dealing with extracts from the Contract, care should
be taken that the meaning is not changed by such omissions.
Sometimes it is more appropriate to include sections from the clause into the
narrative in order to emphasise the meaning or to ensure that the exact
wording is reproduced to avoid ambiguity. Here is an example based upon the
same sub-clause from FIDIC:
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delayed due to ‘exceptionally adverse climatic conditions’. If such an event
occurs, the Contractor is obliged to ‘give notice to the Engineer in
accordance with Sub-Clause 20.1 [Contractor’s Claims]’ and the Engineer
is obliged to determine the extension of time.
The above example is succinct, easily understood, carries the authority of the
contract and is unambiguous. Now let’s go back to our chronology and see
how it can be improved by the use of quotations.
3. On 24 January 2017, the Contractor had not received the bar bending
schedules and again wrote to the Engineer to advise that ’Further to
our letter of 7 January 2017, in which we requested the issue of the bar
bending schedules for the machine bases, we wish to remind you that
we still have not received the schedules and we wish to advise you
that if we do not receive the schedules by the 31 January 2017, the
fabrication will be delayed and our bar-bending resources will be
standing idle’.
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EXPLANATIONS, SUMMARIES AND CONCLUSIONS
Many people do a good job of presenting the bare facts, but fail to explain
what the facts actually mean in relation to the claim and do not lead the
reviewer to the desired conclusion. This is very dangerous, because if the
claim does not clearly tell the reviewer what the outcome of the claim should
be, the reviewer may very well reach a totally different conclusion. You must
NEVER let the reader draw their own conclusions. One way in which this may
be achieved is by including explanations, summaries and conclusions within
the narrative. Simply put, we should state the facts, make sure that they can be
understood, summarise them and then tell the reader what they actually mean
in terms of the claim and the conclusion that must be drawn.
3. On 24 January 2017, the Contractor had not received the bar bending
schedules and wrote to the Engineer to advise that ’Further to our
letter of 7 January 2017, in which we requested the issue of the bar
bending schedules for the machine bases, we wish to remind you that
we still have not received the schedules and we wish to advise you
that if we do not receive the schedules by the 31 January 2017, the
fabrication will be delayed and our bar-bending resources will be
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standing idle’. Thus, the Contractor had not only sent a second
reminder, but had also advised the Engineer of the consequences of
not receiving the information on time.
5. The above recorded the fact that the Engineer had not issued the bar
bending schedules by the date that the Contractor required them and
also advised the Engineer that the Contractor was suffering delay and
incurring cost.
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and caused the Contractor to incur costs through having his
reinforcement fabrication resources standing idle for that period.
I think that you will agree that this is a much stronger narrative and leaves the
reader in no doubt as to the effect of the events, the outcome of the matter
and the conclusion that must be drawn.
This is particularly relevant if some of the people involved in the issue do not
have the language in which the document is written as a first language. Claims
‘experts’ sometimes have a tendency to bolster up their arguments, or possibly
to attempt to impress the reviewer with their knowledge, by frequent use of
complicated language and legalese. Ask yourself if this will have the desired
effect on a resident engineer who has spent his professional career on site,
amongst mud, steel and concrete rather than in a courtroom. The use of
‘impressive-sounding’ language will never replace a well-presented, easily-
understood ‘story’ that deals with and explains the facts in a logical manner. It
is therefore better to use the most simple and direct language possible to
provide a proper understanding of the points being made.
I get the distinct impression that those who compile claims containing
information overload, assume that the reviewer will happily sort through it all to
find out what is relevant. This of course is simply not the case.
Very often, the person who is tasked with compiling the claim will have been
presented with, or will have gathered a vast amount of information, some of
which is relevant and some of which is not. Part of a good claim practitioner’s
skills is to be able to review such information and to decide what is relevant
and is to be used and what is not relevant and should be discarded. It is very
tempting to attempt to include all the available information within a narrative,
but any discussion of matters that do not have a direct bearing on the issue in
question should be avoided.
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The inclusion of irrelevant information serves no purpose at all and will not
help to communicate a clear understanding of the matters being discussed. In
fact, the reverse is true and a reviewer could very well suffer from information
overload and become confused. Narratives should therefore be as concise as
possible whilst still properly illustrating and explaining the points being made.
Similarly, the temptation to define an abbreviation the first time it is used in the
narrative, for example ‘Basement Level 2 hereinafter referred to as “BL2”’
should also be resisted because this relies on the reader reading the whole
narrative from the beginning and then being obliged to remember what each
abbreviation actually means. The small amount of extra effort to type words
out in full is definitely worthwhile as it will avoid both confusion and
annoyance.
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CALCULATIONS IN THE NARRATIVE
Just as we should not let the reader draw their own conclusions, we must also
not ask the reader to work things out for themselves. Did you notice that in our
example used to illustrate explanations, summaries and conclusions that the
narrative explained each calculation as follows?
The Engineer issued the bar bending schedules on 14 February 2017, some
14-days (31 January to 14 February 2017) later than the Contractor
required them and some 38 days (7 January to 14 February 2017) after
the Contractor’s first request.
Granted, this is a fairly easily understood matter, but don't forget that part of a
respondents’ job is to verify the claim’s correctness, so calculations should be
clearly explained to enable them to do so easily. Another example would be:
NAMING OF CLAUSES
To make the reader’s job easier, the clauses should be named as well as
referring to them by number, for example, Sub-Cause 20.1 (Contractor’s
Claims). This ensures that a reader who is unfamiliar with the contract will have
a better chance of understanding without constantly having to refer to the
contract. In order to emphasise the importance of this, I wish to add that,
despite the fact that I have been using the FIDIC contracts for many years,
have written a book about them and deliver training courses on FIDIC, I still
can’t remember each and every clause by number.
On 24 January 2017, the Contractor has not received the bar bending
schedules and wrote letter reference P1234/JCG/DWP/Let/CW/5678/17
to the Engineer to advise that …
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Use of the automatic ‘footnotes’ function in Microsoft Word ensures that a
narrative is not interrupted by constant references to documents and the
footnotes will always appear on the same page as the inserted cross-
references as follows:
On 24 January 2017, the Contractor has not received the bar bending
schedules and wrote to the Engineer to advise that … 1.
This will probably require the reader refer back to Section 3 and try to find
how, why and by how much the ‘Engineer delayed the Contractor and caused
the Contractor to incur costs’, so making the reader refer to other parts of the
narrative to understand what you are saying is not good practice. Very often a
short explanation or even cutting and pasting information from the previous
section will achieve this with little effort, as is illustrated below.
PROOF READING
Finally, the author of a narrative obviously has detailed knowledge of the
project and the circumstances surrounding the issues that are the subject of
the claim; in fact, he may have lived and breathed the project for many months.
It is for this reason that such a person may easily assume, even inadvertently,
that a reviewer has the same depth of knowledge as himself. Consequently,
and even with the best intentions, the author may fail to make things crystal
clear and miss out minor but important explanatory details. When the narrative
is completed it is therefore good practice to have someone review the
document and if this person has no knowledge of the circumstances, then that
is a distinct advantage. The reviewer should put themselves in the place of the
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person who will eventually have the task of reviewing the document and
advise the author on unclear passages, incorrect grammar, unsubstantiated
statements, etc. The reviewer should also refer to any programmes,
calculations and so on that are referenced in the document to ensure that the
narrative has incorporated the correct information, that explanations contained
in the narrative are easily followed and that any cross-references to other
documents are correct. It should also go without saying that any calculations
should be mathematically checked.
It may be tempting to proof read a document that you have prepared yourself.
This is not good practice because it is normal when proof reading your own
work, to read what you think that you have written and not what you have
actually written. A review by another person will usually pick up mistakes that
you would not have identified when proof reading your own work.
CONCLUSION
Unsubstantiated and incomplete claims, otherwise known as inadequately
expressed claims, are one of the number one causes of construction disputes
which lead to time consuming and costly arbitration. If you follow the guidance
contained in this paper and of course, if your claim is a valid one in the first
place, you will have a very good chance of having your claim accepted in a
timely manner without having to raise a dispute.
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