Civil Engineering Reference
In-Depth Information
Chapter 9
Substantiation of claims
9.1 Principles
Many contractors seem to approach contract claims in the same way as the
claimants in
Bruno Law
v.
US
425
and in
London Borough of Merton
v.
Stanley
Hugh Leach
426
, and many a potentially valid claim founders because of lack
of proper substantiating evidence and the contractor's inability to (a) estab-
lish the direct link between cause and effect with regard to delays, and (b)
provide sufficient particulars of the resulting loss and/or expense. It has
been rightly said:
'General words intended to arouse sympathy or other emotion favour-
able to the contractor's interest should be used sparingly lest they excite a
suspicion that the contractor really thinks his claim is founded in mercy
and not in law. Further, it is rarely useful to say that the contractor has
suffered loss due to causes outside his control or which he did not
reasonably anticipate. It is elementary law that such factors are not
grounds in law for extra payment unless, which is rare, they are expressly
so made. If this is put forward as the sole ground of a claim the reader
may well assume that there is no other ground.'
427
In fact, emotion of this kind is out of place in a claims situation, and so is
emotive language.What the claimant must do is to state the facts giving rise to
his alleged entitlement, point to the contract term under which the claim
originates, establish that he has satisfied any conditions precedent to his
claim, and set out the financial basis of his claim. In relation to this last
requirement, clause 26.1.3 of JCT 98 requires the contractor to submit, upon
request, such details of the loss and/or expense incurred as are reasonably
necessary to enable the architect or quantity surveyor to carry out the ascer-
tainment. Although not strictly required, it is probably in the contractor's best
interests that this should be a comprehensive document setting out fullywhat
the contractor considers to be his entitlement, supported by appropriate
evidence. The contractor would be well advised to take this approach even
under clause 34.3 of JCT 98, although there is no specific requirement of the
contractor to provide even the details called for in clause 26.1.3.
