Blog 034 - Are claims construction's next pandemic?

Congratulations on surviving the Coronavirus pandemic so far, but guess what, constructions next pandemic is here… the claims and court cases that will follow the C-19 era. Claim culture is about to go “viral” and the outbreak has started. Most of these cases will revolve around either the additional time required to complete the project or the additional costs associated with managing the project and risk controls.

This is not an issue we can furlough, instead, we have to be ready, here is my survival pack to help steer your business through this claim pandemic:

Stockpile your toilet paper – In this case, this will be your cash. Wait, the reason we’re in dispute is because we are owed cash! Yes, but claims and dispute resolution can be a long and expensive process, make sure you can afford this dispute before you commence. Unfortunately, the “small guy” not being able to afford the dispute is often relied upon by the Goliaths of the industry, so you must ensure you have preserved sufficient cash to be able to last the fight, don’t let them delay you to a point where you have to chose survival over rightful payment. Equally, if a reasonable deal is on the table, don’t be too proud to take it and focus your energies back on your business.

Wash Hands – Keeping your hands clean to stop infection, this means ensuring that there is always an accurate record of events submitted to the client to ensure you are highlighting the problems and are not part of the problems. Continue to prepare daily your site diaries (see blog on record keeping here), submit period reports, correspondence about items preventing progress, As-Built programmes and a substantial quantity of photos.

Distance – Ensure you are socially distant from the problems on the project, that means doing everything you can to ensure you are using all reasonable endeavours to progress your works on site. During COVID that can be difficult, particularly if you are losing staff to infections and having supply issues. The key here, is “reasonable” endeavours.

Mask – The big question throughout the COVID 19 pandemic was whether the masks are effective. Treat your claim the same way. Do not take value from it into your accounts, expect it to be rejected and be prepared for the possible and probable counter claims. You’re heading into a delicate world so please ensure you are ready.

Lock Down – If in doubt, lock down and contact the professionals who will be able to help ensure you are meeting your obligations, sending the correct correspondence and can provide professional advice regarding avoiding disputes, settling disputes or managing them. If I am available I will be happy help, but if not, I can recommend numerous other competent professionals in the industry.

The law is still unclear on how COVID claims are going to be treated, however, I believe there is a growing trend towards classing the COVID lockdown measures as a Change of Law which is more commonly listed as an Employer risk, therefore, we may see more claims coming forward following this clause. Obviously all advice is dependent on your specific contracts, but all of the above our reasonably sound principles for most contracts and scenarios.

I hope this light hearted teaser helped you understand the problems that the industry will be facing in the coming months and years. Unfortunately, the CLC’s advice to “be sensible” when it comes to disputes does not give any guidance and does not provide either party with any restitution. In light of this, I am always on hand to advise in any situation, just drop me an email.