Construction disputes and digital records: the pitfalls and best practice

“Poor documentation can make it easier for lawyers to challenge evidence,” she explained. “It is also important to document everything methodically, especially at key milestones or significant events in the project. This documentation should be treated like a ‘trail of breadcrumbs’ to help someone unfamiliar with the project follow the sequence of events.

“Digital tools and construction technology are now widely used in the built environment and BIM’s ability to generate detailed, contemporaneous records also provides crucial evidence when disputes arise, making it a useful resource in claim resolution.

“Models used during design and construction can offer critical insights when evaluating whether a design was executed with reasonable skill and care or met project requirements. Changes in design, which are a common cause of claims, are another area where BIM can help track variations and their impact on time and costs.”

However, there are problems with relying on digital models and records, Keyte warned.

“A recurring issue is access to these records, particularly if they are stored in a common data environment (CDE) controlled by another party,” she said. “If records are stored in CDEs, subcontractors and other parties should ensure they have independent access to relevant evidence, as reliance on the main contractor can be risky, especially in cases of dispute or contract termination. Contracts should ideally include provisions granting access to CDEs in such events.

“A common tactic is for one party to rescind access to the CDE. This underscores the importance of regular downloads and backups of crucial project data, such as RFI logs and clash detection reports, to ensure all parties have the necessary evidence to support their claims.”

Emeny agreed with Keyte’s warning on the importance of record-keeping and observed that with the construction technology landscape rapidly evolving with new innovations, industry professionals face increasing challenges in managing communication and accessing information effectively.

“One challenge is the accessibility of essential information, particularly email communications,” Emeny said. “Emails remain the primary tool for collaboration, but the lack of standardised email management systems creates significant risks, including lost information, communication breakdowns, and disputes. With over 350 billion emails sent daily worldwide, and many organisations not mandating proper email filing, there is an increased risk of project rework and disputes.”

An Ideagen Mail Manager report highlights that poor communication and rework are major cost drivers in the construction industry. Disputes, driven primarily by project scope changes and payment issues, have risen sharply, with 91% of respondents experiencing disputes in the last year, up from 70% in 2022.

“These issues often stem from poorly managed or inaccessible emails, with critical project scope information often residing solely in email threads,” said Emeny.

“Interestingly, construction professionals continue to rely heavily on email, with 88% reporting an increase in email volume in 2023. However, this reliance underscores the importance of efficient email management systems to avoid future disputes. Large firms like WSP and Ramboll have adopted automated email management systems, saving valuable time and minimising risks associated with lost or inaccessible information.”

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