Preparing Claims to Persuade a Tribunal
| Author | Wayne Clark |
| Pages | 55-88 |
55
CHAP TER 5
Preparing Claims to
Persuade a Tribunal
When submitting a claim, our goal must be to persuade the other
party that the claim has merit and is good enough to persuade an
arbitral tribunal. Such a claim should be an incentive to persuade
the parties to seek and nd a sensible solution.
During a recent in-house training session I presented, the subject
being ‘Preparing claims to persuade a tribunal’, one of the par-
ticipants, a senior member of a consultancy rm, said ‘we are only
preparing a claim for our client’ and asked: ‘W hy do we need to pro-
vide evidence to support the claim? Surely, this [providing evidence]
can wait until the ca se goes to arbitration?’
When tasked with preparing a claim for contractors, our clients,
we need to ask ourselves what the purpose of the claim is, what we
are aiming to achieve a nd what the goal is.
e goal must surely be to prepare a claim that will succeed. To
develop the means – the tool – for our clients to reach a realistic
and satisfactory outcome. To avoid protracted disputes. e goal
must surely be to avoid having to refer the claim to arbitration for a
resolution.
KEY CONSIDERATIONS WHEN WRITING A
PERSUASIVE CLAIM
Despite what I have just said about the goal being to avoid having
to resort to arbitration, when we begin writing the claim, we should
56 CONSTRUCTION DISPUTES
be thinking a head – thinking about the possibility that the claim
will eventually be referred to arbitration for a nal resolution. With
this thought in mind, we must ensure the claim is good enough to
persuade a tribuna l.
If the claim is good enough to persuade a tribunal, the employer
should recognize this a nd be encouraged to negotiate and agree a fair
settlement – to nd that sensible solution.
To persuade the employer and, if necessar y, a tribunal, the claim
must at the very least be clear, objective, comprehensive but concise,
credible and realist ic.
Clear
e claim narrative (the claim report) must be clear and easy for the
reader to understand. Problems can arise when the na rrative is com-
plicated or so boring that the reader loses interest. is is pa rticularly
true when the claim report – the story – is full of technical and legal
jargon. When writing the claim, use language that will be readily
understood by all.
Objective
e tone of the claim report is important. Objective arguments and
respectful phra seology can be persuasive. A confrontational approach
to claims – blaming, alleging incompetence or accusations of bad
faith – will incite conict a nd endanger relationships. Adopting a
confrontational approach will make it dicult, if not impossible, to
achieve a sensible outcome.
Comprehensive but concise
Keep the claim report short. Describe the issues (the events) as con-
cisely as possible. By the time the decision makers have read the cla im
report, they should have a clear understanding of the contractor’s
position with regard to all the events and what it is the contractor is
asking for. e claim report must be written in suc h a way as to hold
the reader’s attention from beginning to end.
Detailed chronologies, analyses, calculations, etc., if included in
the claim report, will sidetrack the reader and run the risk of the
reader (the employer) losing interest. Such details can a nd should be
included in appendices to the claim report.
PREPARING CLAIMS TO PERSUADE A TRIBUNAL 57
Credible
For claims to succeed, they must be based on actual facts and not
perceived facts. e actual facts must be supported by the evidence –
by documents, the records. Many claims I have w itnessed have failed
because those preparing the claims have not bothered to examine
the records or to nd the evidence to support their arguments. ey
often include statements based on what they understood or believed
to be true: statements/arguments based on what they ‘perceive’ to be
the facts. Claims t hat cannot be supported will most certainly fail.
Realistic
e claims must be realistic, particularly cla ims for additional costs.
Exaggerated cla ims, which are usually obvious to an employer and to
a tribunal, will fa il. Unrealistic, exaggerated and unsupported c laims
will be rejected by employers, and this, more often than not, leads
to disputes.
STRUCTURE AND OUTLINE CONTENT OF THE
CLAIM
e results of the investigations (discussed in chapter3) will dic-
tate the strategy, content and tone of our client’s claim. From the
investigations we will have established which of the events should
be focused on and which events should be downplayed or even
excluded.
Before we put pen to paper – before we begin writing the claim –
I insist on preparing a simple structure and outli ne content and agree
this with our client. e structu re and outline content usually takes
the shape set out in the following example.
e Claim Narrative (Claim Report)
Executive summa ry. Concise overview of the claim.
Introduction. Brief summaries of the project, the ty pe of contract,
the parties, the scope of work, the contract price, the commence-
ment and completion dates, a list of the events, and the time and
money being claimed.
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