Driver Trett Digest Issue 21 03.2021 - Flipbook - Page 9
DIGEST | ISSUE 21
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.
Get to know
Diales with
Garth McComb
Garth McComb, Regional Director
and Regional Head of Diales APAC
Driver Trett, Kuala Lumpur
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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
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 have never 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…
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