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About this book

Now in its fourth edition, this textbook confronts many of the major problems which can arise in claims situations. It employs a systematic approach and is supported by extensive reference to UK and international case law. The negotiation and settlement of claims is an essential – but often overlooked – element of the construction industry, and this troubleshooting guide can help construction professionals, students and contractors to protect themselves against costly claims. Helpful explanatory diagrams make this book an indispensable resource for tackling various types of claims both in the UK and internationally.

This text is the essential guide for construction professionals, contractors, undergraduate and postgraduate students alike. It will save professionals and contractors time and money and will prepare students for the reality of the construction industry.

Table of Contents

1. Brief History of Construction Contracts and Case Law

Abstract
Modern contracts are used in a commercial environment which has encouraged the development of claims for a number of years. Nevertheless, some of the conditions of contract used today are based on documents that were drawn up in the nineteenth century, and much of the construction law that is relied upon in the courts and in arbitration has been made as a result of cases that took place in the Industrial Revolution.
Reg Thomas, Mark Wright

2. Choice of Contracts

Abstract
Clients who embark upon any construction venture for the first time are often faced with a number of alternative routes, but usually the first stop will be at the office of a qualified architect or engineer. For the majority of projects this approach may be sufficient. Most professional firms of architects and engineers are well-versed in the use of standard forms of contract and, unless the client has unusual requirements, a standard form of contract will be available to suit most purposes. They are, however, not without their pitfalls, and some architects and engineers fail to provide the necessary advice which may make the difference between ultimate client satisfaction and a potential claim for professional negligence.
Reg Thomas, Mark Wright

3. Tender and Acceptance

Abstract
In Section 3.1 of the second edition of this book mention was made of the then common and historic practice of ‘cover bidding’, whereby a contractor, following consultation with other bidders, would submit an exaggerated bid with the intention of not being the successful bidder. The intention of an unsuccessful bid was usually to ensure that the contractor was not awarded a contract it was unable to fulfil and to avoid the client taking the contractor off future tender lists in consequence of the contractor declining to submit a tender. Irrespective of motive, the practice is now illegal throughout the United Kingdom and the European Union by virtue of section 2 of the Competition Act 1998 and Article 81 of the European Treaty respectively.
Reg Thomas, Mark Wright

4. Monitoring Delay and Disruption Claims: Prevention

Abstract
All forms of contract contain express or implied duties and obligations to be performed by the employer (or his/her agents) and the contractor. Contracts do not usually set out in detail how these duties and obligations should be performed. It is self-evident that the employer must give access to the site and provide information in sufficient time to enable the contractor to carry out the works by the due completion date. The contractor must give reasonable notice of delay or of any claim and the architect, or engineer, must decide and make extensions of time or certify additional payment.
Reg Thomas, Mark Wright

5. Formulation and Presentation of Extension of Time Claims

Abstract
A useful review of the general principles of the law concerning delay and extensions of time can be found in the cases of Balfour Beatty Building Ltd v. Chestermount Properties Ltd [1993] 62 BLR 1, Adyard Abu Dhabi v. SD Marine Services [2011] EWHC Comm and Walter Lilly & Company Limited v. Giles Patrick Cyril Mackay and Another [2012] EWHC 1773 (TCC). These cases are referred to later in the more specific context of delay after the completion date and concurrent delay but between them they are a good starting point for any student hoping to understand the principles applied by the courts concerning delay and extensions of time.
Reg Thomas, Mark Wright

6. Formulation and Presentation of Loss and/or Expense and/or Damages Claims

Abstract
While failure to give notice of delay for extensions of time may not be fatal to a claim, failure to give notice in accordance with the contract with respect to additional payment may bar, or severely prejudice, a claim.
Reg Thomas, Mark Wright

7. Subcontractors

Abstract
An increasing number of contractors do less work by direct labour and rely to a great extent on subcontractors for the execution of the work. It is perhaps for this reason (at least in part) that contractors are sometimes unable to provide adequate particulars and substantiation in support of their claims.
Reg Thomas, Mark Wright

8. Response to Claims: Counter-Claims

Abstract
No one likes to be on the receiving end of a claim. From the employer’s point of view it will mean additional cost by way of loss of revenue and/or additional payments to be made to the contractor. From the point of view of the professional advisers to the employers, it may reflect on the firm’s competence in preparing contract documents and on their skills in contracts administration. They may also be faced with additional costs of administration which cannot be recovered from the employer. When contractors receive claims from subcontractors, they will be mindful of the fact that the claim may arise out of their poor organisational skills, in which case they will not be able to obtain reimbursement from the employer or other subcontractors.
Reg Thomas, Mark Wright

9. Avoidance, Resolution and Settlement of Disputes

Abstract
Many contractors and subcontractors genuinely wish to avoid claims even when there are good grounds for them. This attitude is usually adopted in the belief that firms with a reputation for claims will not be included on some tender lists, and where they are included, they may be disadvantaged if tenders are very close. In some sectors of the industry firms may be justified in believing that a history of claims will be a dominant feature in the evaluation of their suitability for new projects. However, provided that the firm submitting the claim follows some simple rules, there is no reason to suppose that the pursuit of valid claims is detrimental in the long term.
Reg Thomas, Mark Wright
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