La aplicación a la Gran Comisión

Introduction

3.1 Using a formulaic approach as to how you present your claim for money can have many benefits. It can provide a very useful discipline for the person who is preparing the claim, so as to ensure that he obtains the necessary information and sets it out in coherent form. In so doing, he will assist the Employer's representative who has to read the claim and decide whether there are grounds for payment to be made against the claim.

3.2 Any claim should be prepared with litigation or arbitration in mind. There are two reasons for this. The first is that if the Employer does not pay, litigation or arbitration is the final recourse. The second reason is that it will save time and money if the claim has been sufficiently well prepared that it can be used in the preparation of a statement of case.

3.3 In a moment, we are going to look at the format of presenting money claims. However, first let us come back to some principles. Remember what you are trying to prove. For example, if you are making a claim in respect of the late delivery of information from the Employer's design team you should state:

(a) The date when the Contractor applied in writing for the information;

(b) The date when the Contractor actually received that information;

(c) The date and details of the Contractor's application for loss and expense in respect of the late information;

(d) Sufficient details and information regarding that loss and expense.

3.4 Remember that your claim will have to succeed in law. If you are relying on the contract, state the clause you are 'relying' upon. If you are relying on an implied term, state what that implied term is and how it is alleged that

(b) How that implied term has been breached.

If you have a general breach of contract claim, state what term you are alleging has been breached, with the facts are and the consequences of the breach.

3.5 In all cases, refer to the relevant documents. You need to set out exactly what the monetary claim is and how it has been calculated.

3.6 There are two ways in which to set out a monetary claim. The first is in what may be called narrative form, the second schedule (or Scott schedule) form. There is no one method to be preferred. Sometimes a schedule is the best way of presenting the evidence, on other occasions it is not. Whatever way you choose, and we will explore both, simply remember the golden rule that there must be a sufficient particularisation of the causal connection between the quantum of damages claimed and the breach alleged, or the term of the contract under which the claim arises or other allegations of liability.

Example One – Quantum in Narrative Form

3.7 The example set out below fits the patter of explaining quantum in narrative form with supporting appendices

" $ Supporting

Appendices 1 Site Labour

Recorded standing time and salvage works

Extent: from site records sheet – 380 hours

A

Cost: At $12/hr (from wage sheets, see Appendix) – 380 x 12

4,650 Q

Fitter travel expenses 51 S

2 Plant

Hired Plant: Air winch – 1 Wk @$50 50 D Internal Plant: Boring machine – 1Wk

Depreciation @ $1000/Mth

250 S

3 Establishment – 14 days delay

Agent E,F

Foreman Engineer

Huts (depreciation) S

Van (hired @ invoice cost) D

Services S

Insurances 2,500 S

7,361 4 Overheads, HO Charges

Tendered @ 5% on site costs 368 R

7,729

5 Add profit @ 7 ½ % on turnover 580 R

Total Due 8,309

Supporting Appendices

The following documents are referred to in the text and comprise the evidence upon which the Claim is based. Starred items are included in the appendix hereto, all others are available on demand.

(A) Labour allocation sheets *

(B) Wages sheets

(D) Plant invoices

(E) Staff allocation sheets *

(F) Staff costing

(G) Progress reports * (excerpts)

(H) Site diary * (excerpts)

(I) .

(J) Minutes of Meetings * (excerpts

(K) Correspondence * (excerpts) (L) Photographs * (M) Notices * (N) Weather reports (O) . (P) Programmes *

(Q) Labour cost build-up *

(R) Tender overhead/profit provisions

(S) Sundry "

Example Two – In Schedule Form

A little earlier, I used the phrase "Scott Schedule". A true Scott Schedule (named after an English Judge) has the aim of stating all the allegations, defences, and sums claimed in tabular form. Its benefits are that it prevents confusion arising and when completed, often has the effect of bringing parties together to settle small issues. There is no set form and the heading can be changed to suit the particular circumstances. I would advise that using this form of schedule is a good discipline to follow. It allows for clear presentation of the quantum of your claims, requires you to tie event directly to money claimed, and makes clear the contractual clause or breach which is being relied upon.

3.8 In its full form, in litigation or arbitration, the Scott Schedule will have columns for the Defendant and the Judge to fill in. We are not concerned with this today so I will not address a full schedule.

3.9 We shall first look at a schedule for presentation of a Contractor's claim for delay and disruption:

No Relevant Event Basis of Claim Delay Disruption Quantum

1 2 3 4 5 6

1. In the first column, it is usual to include a reference number.

2. Here you should set out a full description of the event you are relying upon,

eg a change order, late access, additional works, etc.

3. Here you should explain the basis of the claim. If it is a claim under a

contract term for payment you should state the clause, eg, clause 17.1.4.

4. Here you should provide full details of what happened as a consequence of

the event at number 2. You should identify what activities were affected together with what delay was suffered and between which dates. You should state whether the delay was critical or not.

5. If there has been any disruption, you should set out what has been suffered,

identifying the trades and activities affected, the period of duration of the disruption and the dates between which the disruption occurred.

6. Here you should detail the loss attributable to each event.

Case Study

3.10 In the case study Tony introduced to you it is intended that the Contractor has decided to make an application for an extension of time for two months due to delay 3, the Employer's design fault. Having prepared a delay analysis for the two month extension, we will now look at the steps required to turn the time period into a claim for additional cost.