Contemporaneous records? My claim got kicked out, why!!
If you don’t have sufficient contemporaneous records to support your claim, don’t be surprised if you don’t get past first base!
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 2: Lack of contemporaneous records to support your construction claim
The process of writing a claim can be summarised in the following steps: identifying the relevant records, collating them chronologically, and then writing your story up by reference to the contemporaneous records.
As such, it is vital that progress reports, letters, minutes of meetings, notices, variations, records of resources on the project, schedule updates, and actual costs are carefully kept throughout the duration of any project.
All too often, contractors fail to keep these records, leaving them without contemporaneous records to evidence the facts about what actually happened in support of a claim.
Claims based on opinion (i.e. without detailed records to support them) are far easier for clients to defend – especially if the client has good records. This is particularly the case on the continent, where formal dispute resolution procedures are more inquisitorial than accusatorial, and more reliance is placed on the documents rather than verbal evidence.
The Kenzie Group worked on an arbitration for a client where the contractor recovered just six per cent of the total claim. The problem was a lack of records to support key arguments and a reliance on witness testimony. Much of this witness evidence was not even referenced in the final award by the arbitrators, who time and time again referred to the contemporaneous records of the project when considering the most relevant evidence in the dispute.
Look out for number 3.