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Evidence your claim? My claim got kicked out, why!!

Did you evidence your claim? If not, you are asking for trouble!

Sometimes we are asked by clients, why was our claim unsuccessful? There are potentially many reasons for this, but from our experience, the most common and significant reasons that occur time and time again, can easily be identified.

I consider there to be four major causes:

Number 3: management and presentation of the facts, namely evidence your claim in a coherent and easily understood manner.

On larger disputes, extensive records are often involved and the job of unpicking the story and identifying the key evidence is a logistical challenge.

At the Kenzie Group, we are currently working a €1 billion project in which the letters, minutes of meetings and progress reports extend to 25,000 pages – not including 20,000 drawings.

It is easy to slip into what is known as “analysis paralysis” whereby the exhaustive detail leads to the ‘story’ of the claim being lost. With every insignificant change or delay pursued and analysed, resulting in an overly complex and difficult to understand story.

When making claims related to large-scale projects, the contractor needs to manage the factual research efficiently and ensure that the key elements are ascertained. The story needs to be carefully framed and then developed. In short you need to evidence your claim by reference to contemporaneous records.

Major projects involve hundreds of delays and potential events, and it is not possible to tell the story of every twist and turn in a presentable, digestible format. The old saying that “80 per cent of the problem is in 20 per cent of the issues” is true in most cases.

A well known barrister once told me: “The side who manages the facts and presents them in the most logical and pragmatic manner, generally has the upper hand in any dispute.” Given that in my experience most claims are 95 per cent about the facts, I would agree.

Look out for number 4.

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