Construction Contract & Claims Management

Podcast Series
Handy Checklist: How to assess the legal merits of construction
claims
The following checklist sets out some of the key matters to be considered when assessing the
legal merits of claims made by contractors under or in connection with a construction contract.

1. Identifying the legal/contractual basis of the claim

No. Item Notes

Claims pursuant to contractual entitlements

1. Has the contractor identified the relevant contractual provision on 

which it relies to bring a claim for additional time and/or money?

2. Does the relevant contractual provision actually confer an entitlement 

to additional time and/or money?

3. Has the contractor demonstrated, with sufficient supporting evidence, 

the existence of the relevant events/circumstances giving rise to a
contractual entitlement to additional time and/or money (e.g. an
employer's instruction to vary the scope of works)?

Breach of contract claims

4. Has the contractor identified which contractual provision has been 

breached by the employer?

5. Does the contractual provision relied on by the contractor actually 

contain an obligation on the employer's part that is capable of breach?
If so, what does that obligation involve?

6. Is the relevant obligation absolute or qualified (e.g. by 

reasonableness)?

7. Has the contractor demonstrated, with sufficient supporting evidence, 

that the relevant contractual provision relied on has in fact been
breached?

2. Notices and other procedural requirements

No. Item Notes

1. Has the contractor satisfied all contractual requirements as to the 

timing, form and/or delivery of notices to be given when making a
claim? Are any of the contractor's notices out of time (and its claim

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 Construction Contract & Claims Management Podcast Series
Handy Checklist: How to assess the legal merits of construction claims

No. Item Notes

potentially time barred)?

2. Has the contractor followed all other contractual procedures for 

making a claim?

3. Limitations of liability
No. Item Notes

Considerations relevant to claims pursuant to contractual entitlements and breach of

contract claims

1. Are there any express or implied limitations on the nature and/or value 
of claims that can be made under or in connection with the contract
(e.g. exclusion of indirect/consequential losses)?

2. Are there any laws or mandatory requirements that limit the 

application/interpretation of express limitation of liability provisions, or
the effectiveness of a time bar provision?

3. Are there any laws or mandatory requirements that would entitle the 
contractor to different levels of relief or compensation from what is
expressly provided for in the contract?

Breach of contract claims

4. Are there any laws or mandatory requirements that limit the type 
and/or extent of damages recoverable for a breach of contract?

4. Further issues relevant to extension of time claims

No. Item Notes

1. Has the contractor identified the relevant event which it alleges has 
caused delay?

2. Has the contractor demonstrated that the relevant delaying event has 
impacted the completion date (i.e. has it established a causal
connection between delayed completion and the delaying event)?

3. Has the contractor provided a clear, accurate and comprehensive 

delay analysis which uses an updated programme showing actual
progress, and identifies the critical path and impact of the delaying
event on the critical path?

5. Further issues relevant to the valuation of claims

No. Item Notes

1. Has the contractor demonstrated, with sufficient supporting evidence, 

that it has in fact incurred the losses or costs for which it claims
compensation?

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Handy Checklist: How to assess the legal merits of construction claims

No. Item Notes

2. Has the contractor demonstrated, with sufficient supporting evidence, 

the causal connection between the losses or costs for which it claims
compensation and: (i) the employer's breach of contract; or (ii) the
events/circumstances giving rise to a contractual entitlement to
additional payment?

3. Does the contract prescribe a method of calculation for the valuation 

of these costs (e.g. schedule of rates/prices)? Has the contractor
applied the prescribed method in its claim?

4. Would the relevant losses or costs have been incurred in any event, 
regardless of the employer's breach of contract or
events/circumstances giving rise to a contractual entitlement to
additional payment?

6. Assessing, responding to and managing claims

No. Item Notes

Assessing claims

1. Has the contractor submitted a composite claim? If so, has the 

contractor been asked to separate out its claim?

2. Has the contractor only provided a high level analysis in support of its 
claim? If so, has the contractor been asked to provide a detailed
analysis?

3. Is it necessary to engage an expert to help assess the contractor's 

claim (e.g. to review the contractor's delay analysis)?

4. Would it be helpful for another member of the employer's organisation 

with no connection to the project to provide an objective second
opinion on the merits of the contractor's claim?

Responding to and managing claims

5. Has the employer established a clear and functional system for 

recording and documenting project information?

6. Has the employer established a clear and functional system for 

reporting, responding to and monitoring claims?

7. Has the employer provided a considered response to each claim 

(regardless of the strengths of the underlying claim)? If not, has the
employer provided a holding response while it prepares a full
response?

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 Construction Contract & Claims Management Podcast Series
Handy Checklist: How to assess the legal merits of construction claims

Contacts
For further information please contact:
James Doe, Partner Nicholas Downing, Partner
T +44 20 7466 2583 T +44 20 7466 2741
james.doe@hsf.com nicholas.downing@hsf.com

David Nitek, Partner Tim Healey, Partner

T +44 20 7466 2453 T +44 20 7466 2356
david.nitek@hsf.com tim.healey@hsf.com

Noe Minamikata, Professional

Support Lawyer
T +44 20 7466 2838
noe.minamikata@hsf.com

© Herbert Smith Freehills LLP 2019

The contents of this publication, current at the date of publication set out above, are for reference purposes
only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about
your specific circumstances should always be sought separately before taking any action based on the
information provided herein.

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