We need to remember that construction claims are ultimately about people
In construction claims, it’s easy to forget that for all the financials, the jargon, the schedules and the processes, ultimately it’s about people and their relationships. Knowing this is what separates claims consultants and the services they offer.
Understanding the human and likely outcomes of a claim
Having been in the industry for more than 40 years, the team at Tungsten Capital often talk about our values: being upfront, telling it how it is and working to protect the clients’ interests. That doesn’t always mean aiming for the biggest reward. Sometimes it means reflecting on what’s realistic or what’s best in the long-term (the preservation of working relationships might supersede financial return, for example).
Our approach also means having empathy for the emotional as well as practical implications that a claim can bring to a situation – especially if it’s really reached a point where it’s escalating into an ugly row. Fear, upset, anxiety, anger – they can all play into the situation and cloud the thinking. The pandemic has been a particular example of how a lack of accountability on behalf of the claims consultant can make the client’s situation better rather than worse.
For example, consider the early rush during the first lockdown, to cite force majeure as sites shut down. Not only was it invariably non applicable, but it may not have sought the resolution claimants would want. For example, outcomes are likely to be either an extension of time or the cancellation of the project. It does not usually equate to financial compensation.
Claims consultants who actually consult
We view our job as being a combination of counsel, voice of reason and protector. We don’t simply record information and fill in the relevant documents. We analyse the facts to really understand the situation and the potential outcomes.
To clarify, this isn’t the normal modus operandi in construction claims. Typically a claims consultant will put together the information to either present a claims notice or counter it. This is done on an hourly (or daily) rate for as long as the work takes. Their fee is not contingent on the outcome of the claim, or the quality of the work. As a result, the claims consultant is not obligated to tell you if your expectations are unrealistic, or to advise on the best course of action. If you lose, your losses relating to the claim are then compounded by the costs of employing the consultant.
Accountability and the claims consultant
Our team likes to do a little more thinking, which is why we chose to reflect our approach in our business model. We’re happy to be held accountable for our work because we won’t recommend a course of action unless we have reason to believe it’s the right one. This is reflected in our usual way of operating, but it is most obvious in our creation of a claims funding initiative. The service delivers unique access to non-recourse funding to recover the cost of bringing a claim. In essence – we put our money where our mouths are and only tell you there’s a viable claim if we really think there is.
In any other commercial organisation, individuals are not simply paid for turning up – they’re paid for doing their job well. Claims can sound like a very murky area, but in reality it’s about resolving issues between people. That’s something that we can all relate to, and something that deserves to be treated with empathy and integrity. Remembering that people and their livelihoods are at the end of every claim is fundamental to doing them well. At least, that’s what we think.