The services offered by claims consultants and construction lawyers are quite different. Who you need depends on your circumstances, and there will be times where you might need both. If you need advice in relation to contractual rights, obligations and entitlements, you should speak to a lawyer.
A lawyer is a legal expert, allowed to give legal advice and appear in Court. They have formal training and experience in the law. A construction lawyer has specialist expertise in legal matters that are specific to the construction industry.
A claims consultant is a consultant who provides commercial assistance in preparing a claim. They will usually have an industry background and will often have expertise in specific areas, such as program analysis or quantity surveying.
The services they offer are quite different.
Depending on their background, a claims consultant will be able to perform a forensic program analysis or calculate the value of specific work, materials or other specific costs. They can help you work out the value of your entitlement, assuming you have an entitlement in the first place.
A lawyer will be able to provide advice around your rights, obligations and entitlements under the contract. That is, they will be able to explain the principles that will be applied in determining whether you have an entitlement and, if so, how that amount will be calculated.
The skillsets are typically complementary.
That is, a lawyer will not usually have the technical background to determine the quantum of a claim, assess periods of delay or provide an opinion on, for example, engineering matters, such as whether a design of a building’s foundations was below the standard of competent engineering practice. They will expect that information to be provided to them by an expert in the relevant field.
Conversely, a claims consultant will not be able to give you advice around whether you have an entitlement to claim or recover under the contract, or the principles that will apply in determining its value. (In fact, there is a legal prohibition against anyone giving legal advice unless they are a qualified lawyer.) A claims consultant will expect the legal principles to be provided by a lawyer. Based on that information, the claims consultant will be able to perform their analysis and make the necessary clarifications.
Who do you need?
It really depends on your circumstances.
If you need advice around the legal principles involved and / or your contractual rights and remedies, you will need a lawyer.
If you need someone to help determine the value of a claim, you will need a claims consultant. You may potentially need multiple claims consultants, depending on the nature of the issues. It is not uncommon to find quantity surveyors working side-by-side with programming experts.
And if you need advice and support on both fronts, you may need help from both a lawyer and a claims consultant. This is quite common.
Where to start?
If your issue is at risk of ending up in a formal dispute process (e.g. arbitration or litigation), we recommend that you start with a lawyer. This is because you will need a lawyer to represent you in those proceedings. You are likely to have more options, and therefore get a better overall outcome, if you involve them earlier in the process rather than later. To learn about the best (and worst) time to contact a construction lawyer, click here.
Also keep in mind that, in a formal dispute resolution process, there are formal rules of evidence, including particular rules that relate to evidence given by technical experts – including quantity surveyors and programming experts.
If those experts are not engaged in the right way, you may find yourself in a situation where:
- their evidence is inadmissible or given little or no weight; and/or
- you are unable to claim legal privilege over communications with these experts. This can potentially result in sensitive material becoming available to your opponent, thereby opening your technical evidence up to potential attack.
The short point is: if you find yourself in a situation where there might be a legal dispute, a specialist construction lawyer is likely to be the best place to start. It is likely that claims consultants with specialist expertise will play a role in that process. But you should be mindful of each person’s role, and ensure you are calling on your consulting team to play to their strengths.
If you’d like to learn more about our team of specialised construction lawyers in Sydney, you can read more about us here.