How Construction Claims Are Actually Proven

By Jinoy Viswan CEO, Aegis PMC

How Construction Claims Are Actually Proven

The problem never begins with a claim. It begins on site, quietly, and often without resistance.

A drawing is issued late. Materials arrive, but cannot be installed. Crews remain mobilised, waiting rather than progressing. Work is pushed out of sequence, not by strategy, but by necessity.

At that stage, nobody calls it a claim. It is absorbed into daily management. It is worked around. It becomes normal. Only much later does the discomfort surface.

A spreadsheet is opened. Planned and actual no longer align. Dates resist reconciliation. Confidence begins to erode, steadily rather than suddenly.

The question is asked then, when the consequences are already embedded in the project.

What actually happened?

Most construction claims do not fail because the project team lacked competence. They fail because the story of events was never assembled with discipline, structure, and sequence.

Claims Analysis Is Not Administration. It Is Structured Reasoning

Claims analysis is often treated as an administrative exercise. In practice, it is an exercise in reasoning.

Keith Pickavance consistently emphasises that claims succeed when they are built on demonstrable cause and effect rather than retrospective justification.

Checklists have value. They help ensure that obvious steps are not missed. They do not, on their own, prove entitlement.

Entitlement is established only when four elements are aligned, and aligned in the correct order:

Cause.

Effect.

Entitlement.

Substantiation.

This order is not academic. It reflects how projects unravel in reality and how decision-makers assess responsibility. When the sequence is reversed, credibility weakens, regardless of the volume of data presented.

1. Identifying What Actually Went Wrong

Every claim begins with events, not outcomes.

Information is issued late. Design remains unresolved. Interfaces are mismanaged. Work is suspended, compressed, or repeatedly re-sequenced. Change is introduced without coordination or integration.

Roger Gibson has long cautioned against conflating symptoms with causes. Difficulty on site is not a cause; it is an outcome.

The analytical task is not to describe difficulty. It is to isolate discrete events.

That requires discipline:

• Separating root causes from downstream symptoms

• Identifying who controlled the triggering action or omission

• Anchoring each event to time, location, and scope within the project lifecycle

Causes must be factual and independently verifiable. They must exist before cost or delay is discussed.

A claim that begins with financial loss has already inverted the logic and weakened its own foundation.

2. Demonstrating How the Project Was Impacted

Effects are not assumed. They are demonstrated.

Once causes are identified, the analysis moves to how those causes altered the planned execution of the works.

Effects typically manifest as:

• Delay to activities, milestones, or completion

• Disruption to productivity

• Out-of-sequence execution

• Extended deployment of labour and equipment

• Idle or inefficient resources

The Society of Construction Law Delay and Disruption Protocol makes clear that effect must be established in time before responsibility or compensation is assessed.

At this stage, three realities must be clearly distinguished:

• What was planned

• What was statused at the time the event occurred

• What actually took place

Schedule analysis becomes relevant here, and only here.

The question is not which delay analysis method is preferred. It is which method best explains the observed effect using the records that genuinely exist.

AACE International Recommended Practice 29R-03 reinforces that the selection of method must follow the nature of the issue and the quality of available data, not preference.

Until effect is demonstrated in time and performance terms, entitlement remains speculative.

3. Why the Contract Responds

Entitlement does not arise from hardship.It arises from contractual responsibility.

Nicholas Gould has repeatedly highlighted in his writing that entitlement analysis must remain contract-led rather than outcome-driven.

At this stage, established cause and demonstrated effect are tested against the contract, including:

• Time extension provisions

• Change and variation mechanisms

• Suspension and acceleration relief

• Compensation event structures

Key considerations include:

• Whether the event falls within the employer’s allocated risk

• Whether notices were issued and rights preserved

• Whether extensions of time were requested, assessed, or deferred

• Whether prior agreements closed the issue through accord and satisfaction

Concurrency is addressed here as a question of responsibility, not arithmetic.

The contract remains the primary lens. Jurisdiction-specific arguments are introduced only when they are genuinely required.

4. Proving the Position

Substantiation is where credibility is tested.

Claims rarely fail because records do not exist. They fail because records are presented without structure or alignment.

Effective substantiation connects narrative and proof:

• Contemporaneous documents establish occurrence and timing

• Schedule analysis demonstrates impact

• Cost and productivity analyses quantify consequence

Several disciplines are critical:

• Base scope and change-related impacts must be clearly segregated

• Variance analyses must reconcile claimed amounts to actual project outcomes

• Productivity loss must be demonstrated through data or accepted analytical techniques

• Claimed costs must not exceed demonstrable loss

This alignment of cause, effect, and quantum is consistently reinforced in leading claims analysis frameworks, including the structured checklist approach.

Substantiation is cumulative.

Each layer reinforces the logic already established.

5. From Analysis to Understanding

Analysis alone does not persuade. Understanding does.

Integration assembles the findings into a coherent explanation that:

• Follows the project chronology

• Demonstrates how each cause produced a specific effect

• Explains why the contract provides relief

• Shows how quantum was derived and reconciled

The narrative must be intelligible to decision-makers who were never present on site.

This is where engineering reality is translated into decision-making clarity.

Tailpiece

Seasoned practitioners learn this without ceremony.

Claims are rarely lost in hearing rooms. They are lost earlier, when events are absorbed but not understood.

When cause is respected, effect becomes visible. When effect is clear, entitlement follows. When entitlement is grounded, substantiation persuades.

Good claims do not argue. They explain.

Explanation, built on structure and evidence, withstands scrutiny.