With Regional Head of Diales APAC, and Driver Trett Regional Director based in Kuala Lumpur, Garth McComb.
For those of you who may not yet be aware, Diales is the brand name under which the most qualified and experienced Experts in the Driver Group of companies operate.
Diales was the initiative of Driver Group CEO, Mark Wheeler. The brand was established to guarantee our clients a level of experience and qualification, when requiring expert witness services.
When our clients engage a Diales expert, they are engaging someone who has:
- A minimum of 15 years’ industry experience;
- Previously been cross examined or has successfully completed cross examination training;
- At least 50% of their workload as an expert;
- Been trained in what is required of an expert in litigation or arbitration.
I have personally been involved in two hearings where one of the first questions put to the opposing party’s expert was: “How many times have you given evidence as an expert prior to today?” Their response, it was the first time. In both cases, nobody seemed more surprised than their own clients, who presumably had assumed they had engaged a battle-scarred expert with many victories under their belt.
Diales Experts hail from a wide variety of backgrounds, but can be generally grouped into one of three categories, namely: Quantum, Delay and Technical Experts.
Probably the best place to start, should you be looking for an expert in one of those fields, is the Diales App. The app can be downloaded from Google play/Apple iStore, and contains the background experience for each Diales expert, our services and contact details. For additional information, you can refer to our website: www.diales.com.
I was immensely proud to have been appointed as Regional Head of Diales for APAC (Asia Pacific) late last year, and I am ambitious to not only promote the high quality experts that we already have in the region, but also to promote the whole of the Diales team.
While much of a Diales Expert’s role is acting in formal dispute resolution, I just wanted to take this chance to extol the benefits of hiring a Diales Expert in the early days of a project.
One thing I have noticed in many of the disputes that I have been involved with, is that parties, be it Claimant or Respondent, often both, are regularly put in a compromised position due to a lack of appropriate records detailing the matters that gave rise to the dispute.
With years of experience and first hand knowledge of how disputes are resolved, Diales experts can provide invaluable advice at the outset of a project - to explain what records should be kept, in order to comply with the particular contract conditions - so that in the event of a dispute, the party that was so advised is fully prepared, and able, to substantiate their position and / or justify their losses.
Another area where Diales experts can help to reduce the likelihood of a dispute, is the identification and notification of claim issues in a timely manner.
I haven't been a proponent of notice requirements that deny a contractor the right to make a claim simply because they have not notified the employer of their intention to claim in time. I understand that there may be circumstances when an employer, if faced with a potential claim, may be able to consider alternative solutions and avoid additional costs; but for an employer to avoid incurring additional costs for implementing a change simply because the contractor failed to submit a notice in time does not seem equitable. However, the Contract is the Contract and in our industry it is rare for a party to a contract to be able to say convincingly that it entered into a contract with its eyes closed.
Shortly after I moved from Singapore to Malaysia about 10 years ago, I was in a meeting discussing a report that we had prepared for a contractor. The report was a review of the Contract they had recently signed and was intended to give them guidance on compliance requirements and potential pitfalls within the Contract.
The Contract contained a clause in relation to claims for additional money and stated that if the contractor intended to claim additional money for any reason, including variations, it had to notify the engineer within 21 days of becoming aware of the issue giving rise to the claim.
Part of our advice to the contractor was to review all drawings issued by the engineer and submit a notice of intention to claim for any changes in the drawings within 21 days of receipt of the drawings.
The Project Director asked me if I was really saying that if he was issued a drawing which included changes to the work, and he did not submit a notice of his intention to claim for the change, then he could lose his right to claim anything. I told him that is what his Contract said. He told me I did not know how construction works in Malaysia.
We were not hired for claim services throughout the Contract, but I did hear later that most of the contractor’s subsequent claims were rejected on the grounds of there being no notices.
As mentioned above, I am not a proponent of restrictive notice requirements that appear to be an attempt by the client/employer to avoid having to pay compensation for their own actions, or inactions. I was therefore heartened to read one recent case report from Malaysia where the Judge, in my opinion, made a fair and reasonable decision that compensated the Claimant for some, though not all, of its losses, despite the lack of any notice of its intention to seek compensation.
In the case of Sunissa Sdn Bhd v Government of Malaysia, there was no dispute that the Plaintiff had been awarded extensions of time for matters that could be compensable issues under the terms of the Contract. The Plaintiff was claiming loss and expense for the delay periods based on recurring preliminary items costs and head office overheads.
The Defendant had rejected the claims on the grounds that the Plaintiff had not submitted any notice of their intention to claim compensation.
Clause 44.1 of the Contract in question provided inter alia that “if…[EOT was granted under certain clauses as it had been in this case] …and the contractor has incurred direct loss and/or expense beyond that reasonably contemplated... then the contractor shall within thirty (30) days of the occurrence of such event or circumstances or instructions give notice in writing to the S.O. of his intention to claim…”.
In short, the judge held that the portion of the Plaintiff’s claim which was based on recurring Preliminary Items costs were “within that reasonably contemplated” and therefore clause 44.1 did not apply and hence no notice was required to claim for such costs. The other main portion of the claim for head office overheads was rejected as it was considered “beyond that reasonably contemplated” and therefore required the submission of a Notice.
While I am not totally convinced that head office overheads should be considered to be beyond that reasonably contemplated, I do feel that had this matter been in front of an Arbitrator, many would have simply held that the loss and expense claim should fail due to the lack of the required Notices. In my opinion, the judge should be applauded for this decision.
Dated: 25/03/2021
This article was originally written and released as part of issue 21 of the Driver Trett Digest.
To view the publication, please visit: driver-group.com/digest-issue-21