Strategic claims support for adjudication on a major rail project

Our client is one of the UK’s leading offsite modular building specialists and agreed to a subcontract to supply and install semi-permanent offices for a major rail project. There was a substantial difference between the main contractor’s final account assessment and our client’s final account assessment and we were instructed, on the back of previous advice we had given, to prepare information for the purposes of an adjudication.

Our scope included the nine compensation events we had already reviewed, plus a further thirteen compensation events. We were responsible for the entitlement, delay and quantum aspects of the compensation events. Our client appointed the lawyers, and we worked alongside them to prepare the information and outlined the strengths and the weaknesses of each compensation event for consideration.

Our approach

Our client had a contractual date, connected to completion and final account type provisions, by which it must refer any issues to adjudication or accept the main contractor's position. This was circa two to three months from the date we were instructed, so the priority issue was the preparation of a plan showing information we required, actions we would perform and dates by which information would be available for the lawyers to review.

As part of our plan, we revisited the valuation of the previous compensation events to understand where the differences were and identify how we could improve our client’s submission with further evidence, information or explanation. We worked with the appointed lawyers to explain these issues and take advice on whether the compensation events should be approached using a prospective or retrospective assessment where issues such as risk allowances were in contention between the parties.

A key issue in dispute was entitlement to time, and liability for damages or entitlement to recover additional costs. Our appointed delay analyst used a time slice windows

analysis based on the relevant accepted programmes. This was the most suitable method in circumstances where there was a lack of contemporaneous records needed to produce a comprehensive as-built programme.

A key part of our service was to provide our client with regular updates on progress and any blockers we had. This was managed through a series of weekly meetings where we provided a two-page summary report of progress and talked to the client’s Managing Director about any risks or opportunities in their case.

The outcome

The information we provided gave our client a framework for settlement discussions with the contractor. Our client developed a strong understanding of the strengths and weaknesses in its case so that sensible decisions could be taken. This would inevitably involve compromise, but it was our advice that settlement was in our client’s best interests due to the uncertainty that a third-party adjudication process can present.

Our client ultimately made an agreement with the main contractor, and this allowed our client to draw a line under the project from a financial perspective and avoid the costs and uncertainty that a third-party process would present.