Defence against an employer-issued LD notice on a healthcare build
A buildings contractor received a LD notice of USD 8.5M on a hospital project completed six months late. Ashforte built the defence position, quantified concurrent-cause exposure and negotiated a settled resolution.
The situation
The project reached practical completion six months late. The Employer issued a formal LD notice claiming the maximum contractual amount — approximately USD 8.5M.
The contractor's position was that a substantial portion of the delay was attributable to Employer-caused events (late design releases, changed scope, delayed approvals) and that concurrent-cause principles applied to the balance.
Prior EOT submissions during the project had been rejected on procedural grounds and the contractor had not maintained a live claim position through delivery. Defence had to be built from the record base that existed — which was uneven.
Ashforte's intervention
The engagement was structured around the following workstreams, delivered by a senior-led team operating to Ashforte's standardized delivery protocols.
Defence positioning
- Contract position review — LD clause, cap analysis, mitigation of loss
- Record base audit — what could be substantiated from existing records
- Employer-cause identification across the project timeline
- Concurrent-cause analysis with contract-form specific treatment
Rebuttal construction
- Point-by-point response to the LD notice
- Employer-cause quantification with cause-and-effect narrative
- Concurrent-delay treatment documented explicitly
- Mitigation-of-loss argument based on Employer's operational commencement date
Negotiation
- Formal rebuttal submission
- Without-prejudice discussions across four sessions
- Package settlement framework including release of retention
- Escalation trigger to DAB if settlement failed
The result
Negotiated settlement reached at approximately USD 2.1M LD payment — a 75% reduction from the initial LD notice. Retention released as part of the settlement package.
The contractor accepted the settlement to preserve the client relationship (one of a repeat-client group) and avoid escalation to DAB. The defence position would have supported further reduction at DAB, but the commercial trade-off favoured settlement.
The contractor engaged Ashforte on a Portfolio Retainer specifically to prevent recurrence — with focus on notice discipline and live claim positioning across every project, so future defence work would start with a stronger record base.
Lessons
The lessons from an engagement are usually more transferable than the specific results. What Ashforte's clients typically take away from case studies like this one:
Defensive positioning against LDs benefits enormously from a live claim position maintained through the project. Building defence from a cold record base is possible but constrained by what the records will support.
75% reduction on the LD notice was a strong outcome given the record base — but the record base was the ceiling on how far the position could go.
The client-relationship value of a negotiated settlement often outweighs the incremental recovery available through escalation. The contractor made the right commercial trade-off.
This engagement sat within Claims & Dispute Support.
Entitlement identified early. Claims built on evidence. Defence positions ready before they're needed.
Explore Claims & DisputesInitial Commercial Risk Assessment
By invitation, Ashforte provides qualified contractors with an initial commercial risk assessment on one live project. A structured senior review of contract, claims and commercial-control exposure, delivered as a documented briefing with a 30-day action plan. Qualification is determined in the first conversation.
A structured review of one live project — offered by invitation, at no cost, to qualified contractors.
Request an initial assessment- 01Review of selected project documents (contract, correspondence, variations, programme)
- 02Identification of key contract and commercial risk exposures
- 03Short maturity assessment across notices, variations, claims and payment controls
- 04A practical 30-day action plan
- 05Findings call with the project or commercial lead
- Contractors with active commercial pressure on a live project
- Variation or claims exposure requiring senior review
- Payment or certification issues affecting cash
- Stretched commercial teams needing external senior view
- Final account or close-out situations
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Prolongation and disruption quantum on an airport buildings package
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Final account recovery on a rail infrastructure project
A civil contractor completed a metro civils package with significant unresolved variations and claims. The internal team lacked capacity to build the final account under time pressure. Ashforte assembled the account, negotiated close-out and unlocked retention.