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"The burden of proof is on the Claimant" or "the Claimant will succeed only if on the balance of probabilities his evidence is more convincing than his opponent".

The importance of this fundamental principle of proof is always stressed to obsession by those who determine disputes and in such determination; there is nearly always a partial failure of claim on the basis that evidence is inadequate.

As a Claimant or Defendant, you are required to provide evidence to support you r case. If you could weigh your evidence on a set of scales and you are the Claimant, if your evidence weighs the same or less than the Defendant then you would lose. Only if your evidence weighed more would you win.

So how is it decided which is the weightier argument? There is no exact yard stick for valuing and measuring evidence. The measure of evidence is based on the quality of the evidence submitted. It is therefore no surprise that there is often confusion and misunderstanding. Evidence is open to interpretation and this can lead to differences in how the decisions are arrived at between different personalities. The decisions therefore of the individuals who determine disputes are to some extent unpredictable.

To give you the optimum chance of succeeding you need to fully understand what is required.

The best way to do this is to seek the expert opinion of someone who is qualified in Construction Arbitration and/or Adjudication.

Where there is a case to answer they will be able to assess your position and produce a report/analysis that will enable you to add more weight, favourably, to you r case. They can also add much needed clarity by highlighting swiftly where cases do not exist or where there are weaknesses. This will enable you to assess the risks associated with taking the dispute on or moving it to negotiation level.

It is not uncommon for disputes to drag on due to formal legal proceedings and a seemingly obstructive Respondent. Sometimes it is years before a Court or Tribunal will order the use of an Expert or Experts to prepare reports. It is fair to say though that when the Expert’s detailed analysis begins, parties often settle the matter between them.

Common-sense would dictate that, as a Claimant, the Expert Report should be com missioned at the outset – why wait for years for a Court to decide? This would highlight the evidential requirements and/or improvements plus provide further weight to the case in the balance of probability. With many years of experience as Construction Expert Witnesses, Arbicon can provide invaluable advice so please do not hesitate to call us to find out about our professional Expert Report Services.


Author: Jonathan Nugent

Managing Director - Arbicon ADR Ltd, Chartered Quantity Surveyor, Construction Adjudicator, Arbitrator, Mediator, Expert Witness/Reports/Determination, Lecturer, Delay and Loss Analyst, Leading Authority on Construction Contracts/Law, Commercial Construction Contract Solutions and Dispute Resolution.