This principle applies regardless of whether the claim is being pursued in court, at arbitration or adjudication. It essentially means that the party making the claim must prove their entitlement. For example if a contractor is seeking payment over and above what has been certified, the onus rests on the contractor to evidence their entitlement to those additional sums.
It goes without saying that the legal basis for the claim must be demonstrated. So in the case of a claim for additional payment, it would need to be shown with reference to the contract how that claim arises whether it be as a result of a variation or re-measurement. However that is not enough. What is also required is to prove the factual basis of the claim. This is where good record keeping is essential.
Records of variations, notification of events under the contract, delays and vouching of the costs arising from these events will often make or break a claim. The decision maker was not party to the contract or the events that developed during the project, they therefore have to be persuaded that what the party making the claim is saying is probably true. The best way to do this is with contemporaneous records.
Records are particular important, when a claim for additional time arises. In pursuing a claim for additional time the key is to recreate the event that caused the delay and apply the details of that particular event to the construction programme relevant at the date of the delay. As these events are likely to have occurred in the past, it is only through the use of records collected at the time of the delaying event that the details can be extracted.
Records should be maintained for all aspects of the project, including but not limited to:
- the contract/tender;
- contract administration e.g. notices, payment applications and certificates;
- programme including delay events and progress; and
- Costs e.g. additional costs flowing from additional work, delays, acceleration etc.
Without good records claims cannot be progressed. Systems for record keeping should be set up at the outset of a project but it is never too late to put these systems in place.
In light of the current Covid-19 pandemic, as a whole we are having to adapt and change the ways we are working. With the increase in remote working, there is far more reliance on electronic documentation than there has ever been. It is therefore best practice to ensure that there is also an electronic system for maintaining and storing all records. This allows progress on claims to be made when access to the physical records is not possible.
At Morton Fraser we understand the need to bring clarity to the pursuit of construction claims. We have a large and experienced construction team who regularly deal with construction claims and we would be happy to discuss any issues you have in respect of your construction contract and the documentation which is required to best assist you pursue or defend a claim.