Let us understand the fact that services offered by construction lawyers and claims consultants are not the same. Who the affected parties require, depends on the circumstances they are facing. There are incidences when they need both of them. In case a company needs advice related to contract rights, obligations or entitlements, they hence need to consult with a lawyer.
Lawyers are legal experts who are licensed and permitted to provide legal advice. They also appear in courts. They have formal training, experience and expertise in law. A construction lawyer is one who is a specialist dealing with the construction industry’s legal matters.
On the other hand, construction claims consultants can provide commercial assistance when making a claim is needed. They will often have a strong background in the industry and will also have expertise in certain areas, such as program analysis or quantity surveying.
Yet, the services both offer are very different depending on their background.
A claims consultant and a construction lawyer – the differences present
A construction claims consultant can help conduct a forensic program analysis, quantum analysis or determine the value of work, materials or other resources spent in a construction project. They help clients work out the value of their entitlement, with the assumption that there is an entitlement in the first place.
Construction lawyers can provide advice related to employee rights, entitlements, obligations and other factors in a construction contract. This is the reason they can explain the principles which can be applied in finding out whether their clients have an entitlement or not. In case they do, they will find out the amount by calculation. Their skillsets are usually complementary.
A lawyer will not often have the technical background to find out the quantum of a claim, assess delay periods or give an opinion on matters related to engineering, architecture or structural integrity, and whether or not the construction methods were in line with competent engineering practices.
On the contrary, a claims consultant will not be able to give advice around whether the affected parties have an entitlement to a certain claim, or to recover one under a certain contract, or the rules that will apply in finding out its value.
There is, in fact, a legal prohibition against anyone providing legal advice, unless and until they are qualified lawyers in this regard.
Construction claims consultants will expect construction lawyers to provide legal principles or knowledge in line with construction laws. On the basis of such information, they will be able to carry out their analysis and provide the needed clarifications.
Who do the affected parties need in case of any construction claims arising?
Whether clients need a construction lawyer due to any issues in the project, or need a claims professionals to make construction claims, it usually depends on the circumstances they are facing.
Those who require advice revolving around any legal principles involved and/or their contractual rights and remedies, they will require a lawyer.
Whereas construction claims help those who need find out the value of a claim they need to settle. As a matter of fact, they might need multiple consultants for construction claims and this depends on the nature of issues at hand.
Quantity surveyors will be found working together with experts in programming and quantum analysis. If contractors or construction comp[anies need support and advice in both the legal front, and in terms of claims; then they need both a construction lawyer and a claims consultant. Such a phenomenon is quite common.
From where should they start?
If an affected entity/party is at risk of facing a formal dispute process (either an arbitration or litigation), it is wise that they go for a lawyer. This is because they can represent them in those proceedings. The affected entity or party can have more options and hence get an overall better result, provided they are involved earlier in the process instead of being involved late.
It should be understood that formal rules of evidence apply in a formal dispute resolution process. It includes rules particular and relevant to evidence provided by quantity surveyors, programming experts and other experts.
In case those experts are not engaged properly, affected parties or entities may find themselves in a situation where their evidence is not admissible, or has little or no weight.
There can be a situation where they cannot be able to make a claim for legal privilege over communication with experts involved. This can potentially result in sensitive material falling in the hands of the opposing parties which can make technical evidence face a potential attack.
Any business entity finding itself in a legal dispute in construction projects can work with a construction lawyer. Claims consultants can play their role if and when needed, as they are specialists in construction claims. Yet, they should be aware of each person’s role, and they must also be sure they are in touch with their consulting team to do their level best.