Recovering the position
Commercial distress rarely presents as a single event. It emerges as a series of individually manageable issues whose cumulative effect is severe.
The position on arrival
By the time we are engaged, three conditions are commonly present. Entitlement has been diminished by silence, with variations left unnotified, delay events unrecorded and time bars passed. The contemporaneous record is insufficient to establish what occurred and why. And the relationship between the parties has deteriorated to the point where matters are no longer resolved commercially.
The work is not to argue more forcefully. It is to rebuild the position from the contract upward, on evidence that will survive examination.
How we approach it
Establishing where the project stands
An independent assessment of the position as it is, rather than as it appears in the reporting. We examine what entitlement exists and whether it remains recoverable, what exposure has accumulated upstream and downstream, whether the programme represents the works as executed, and whether the forecast reflects the position beneath it. Above all we test whether the contemporaneous record will support a claim, or whether it must be reconstructed before one can credibly be made. This is delivered as a position paper for the board, joint venture board or steering committee, with a recommended course of action and a considered view of what is achievable.
Recovering entitlement and building the claim
Much of the value on a distressed project is not new money. It is entitlement that existed from the outset and was not claimed, quantified or evidenced. Having established what remains available, we build the substantiation to support it — analysing delay and disruption to establish causation rather than correlation, developing extension of time entitlement together with the notification strategy behind it, and quantifying prolongation, disruption and variation cost. Claims are built narrow, evidenced and defensible, on the understanding that a large and undisciplined claim invites wholesale dismissal. Where a claim will not stand, we say so at the outset rather than after the cost of establishing it has been incurred.
Resetting the commercial basis
Where the original allocation of risk has become commercially untenable, the answer is sometimes not a claim but a different contract. We have negotiated full model resets from lump sum to cost-reimbursable, including resets applied retrospectively to contract commencement, restructuring the commercial relationship rather than litigating within a structure that no longer works for either party.
Defending the position
Recovery is rarely one-directional. Backcharges, liquidated damages, defect allegations and claims brought by principals, interface contractors and subcontractors are assessed and answered with the same discipline applied to prosecuting a claim. Where insurance responds, we prepare the evidence and conduct the negotiation with insurers under contract works and professional indemnity policies.
Reaching resolution
The objective throughout is a negotiated outcome, which is generally faster and less costly than the alternative. Where that is not achievable, we support the process that follows — adjudication and Security of Payment, expert determination, and arbitration, including expert witness engagement.
Who we act for
Principals, head contractors, joint venture participants and subcontractors. We have run recovery from each position, which is why we can anticipate how the party opposite will respond to a position before it is put.
Discuss an engagement
An initial conversation carries no obligation. Where StratMonk is not the appropriate fit, we will say so.
Start a conversation
Describe the circumstances and we will advise on the appropriate approach.