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08/12/19

Evaluating Contract Claims (Third Edition)

Evaluating Contract Claims (Third Edition)

Evaluating Contract Claims (Third Edition) by John Mullen and Peter Davison

Our third edition of Evaluating Contract Claims will be published in October. This is a substantial re-write of the previous edition and is expanded to nearly 700 pages of original text. A number of new and unusual heads of claim are considered, whilst approaches to quantification of the more common heads are considered in greater detail than before.

This new edition takes a much more international perspective to claim quantification. FIDIC Red Book terms are used as examples of provisions commonly encountered internationally. The increasing use of NEC forms, both in the UK and internationally, is reflected by analysis of the claims provisions of NEC4-ECC as examples of a more proactive and prospective approach. For the UK market, SBC/Q and the Infrastructure Conditions terms are considered.

Our experience is that “one size does not fit all” when quantifying many heads of claim. Variables such as the express terms of the contract, the applicable law, the underlying facts, the available records and proportionality are therefore discussed. We then set out the potential alternative quantification methods for different heads of claim, particularly of problematical heads such as disruption and head office overheads and profit.

New heads of claim analysed include those in relation to bonds, preliminaries thickening, cumulative impact and post-handover costs. The often overlooked area of duplications between claims is also covered with suggestions on how to address overlaps. 

Substantially expanded sections include those on acceleration, termination (which now has its own chapter), the valuation of omissions and the valuation of defective works. The second edition’s lengthy discussion of global claims is further expanded, now with consideration of related terms such as ‘total loss’ and ‘total cost’.

This new edition also brings up to date consideration of relevant judgments of the UK commercial courts since the second edition, such as those in Lilly v Mackay, Liverpool Museums, Healthy Buildings, MT Hojgaard and  Cavendish v Makdessi.

For those wishing to prevent rather than cure, the book explains how change (planned or unplanned) gives rise to claims, and how claims can lead to disputes. Common pitfalls are identified in preparing contract documents, administering contracts, preparing claims and responding to them. Advice is given on how to prevent claims arising in the first place or evolving into disputes if they cannot be  avoided.

John Mullen, Principal and Quantum Expert Diales

I have now had the opportunity to read through the third edition of the book. The previous editions have helped numerous construction professionals to apply a consistent approach to valuing claims based on good practice and founded on sound legal principles.

The third edition includes many necessary updates to deal with new standard forms, recent court decisions in the UK and overseas, the changes to the SCL Protocol, changes to the Rules of Measurement and the introduction of International Construction Measurement Standards. Above all, the third edition has now taken on an increased international tone. As the authors explain, in many international arbitrations the expert evidence on claims is given by experts from the UK. This is for a number of reasons: the fact that engineers and quantity surveyors, as well as other consultants often come from the UK; the widespread use of the English language in international construction and the application of English law or other laws developed from English common law.  However, it also reflects the fact that English construction law is more mature in tackling the issues which arise in evaluating construction claims on complex projects.

The book includes detailed assistance in evaluation of every type of claim which practitioners will encounter. These vary from evaluating direct or time consequences of claims to evaluating termination claims or post completion claims. The third edition also refers to claims arising from calls on bonds. No matter what type of claim, whether straightforward valuations of variations or problems of complex delay and disruption claims, the third edition of the book contains a comprehensive guide to the current state of knowledge and experience in evaluating those claims.

Whilst the previous editions were more focussed on the UK domestic market, they were used overseas by practitioners who needed to have access to specialist knowledge on evaluation of claims. This has necessarily led the authors to provide more assistance to those dealing with claims overseas.  The third edition should therefore find a place, worldwide, on the shelves of all those involved in evaluating claims whether construction professional or construction law practitioners. John Mullen and Peter Davison are to be commended for providing such a practical and informative book which will assist in claims being properly formulated and established under construction contracts.

Sir Vivian Ramsey QC

July 2019 

Purchase your copy here

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