Records – your first line of defence in disputes, but where are they?

Contemporaneous records are key to defending disputes, but can you source all the documentation you need easily?

A recent webinar from CM and Digital Construction Plus focused on this question. Answering the question were: Jason Sharp, founding partner of Overford; Sarah Keyte, technical director at HKA; and Henry Counsell, account executive at Ideagen.

Sharp stated: “Records, records records – whether a dispute concerns variations, delays, defects or payment, the outcome will always depend upon how good your records are.”

Before he became a lawyer, he was a QS. “I’ve learned from both disciplines that construction disputes are rarely resolved because one party has a better argument; they’re resolved because one party can prove its position. That applies whether the matter proceeds to adjudication, arbitration or litigation, or whether you’re trying to negotiate a commercial settlement.

“By the time we’re instructed, as experts, the relevant events may have taken place several months or even years earlier. The project team may have changed, memories will have faded, and different people may generally remember the same event differently: that’s why it’s so important to keep contemporaneous records.”

“A simple example, if someone says the delay was never raised, but there’s daily reports and emails that repeatedly identify the delay, the contemporaneous records are likely to be highly significant.

“The records created during projects are not merely administrative documents: they eventually become the primary evidence in most disputes.”

Sharp addressed what happens when a dispute arises: “Once the dispute has arisen, or appears reasonably likely, the first practical step is its preservation. You should suspend any routine deletion and clean-up processes of mailboxes where necessary. Identify the people who hold the records, that will be your project manager, your site managers, your QSs, planners, etc.

“And identify where these documents are stored. Are they in hard copy? Not so much anymore, but they’ll be in email accounts, phones, laptops, Microsoft Teams, SharePoint, and common data points and local project drives. Don’t assume that the filing system used by the site team is comprehensive. Human error does occur and there’ll be documents saved in emails, in downloads folders, all over the place.”

He reminded the audience that date-stamped photos have great value as evidence when they can be connected to a specific location and activity.

Emails, Microsoft Teams chats, WhatsApp messages, metadata and revision histories are all types of evidence that should be collected, he said. “This means preserving earlier messages and replies, the forwarding history and transmittals. They can help give you an entire chronology of the dispute.” He warned against creating PDFs of emails [and relying on them] because the metadata is lost.

He concluded: “Build a chronology before building an argument. Make sure you find any gaps in your documentation. And then let the contemporaneous records tell the story.”

Sarah Keyte at HKA detailed how technology is used in disputes. “In my experience, model analysis is much faster than using drawings, especially on larger projects. Models can be really useful for working efficiently to look at things like design changes (a leading cause of disputes and claims). If models are available, then we can use them to look at design development and look at things like the level of effort used to implement instructions and consider how variations can be seen in the models.

She noted that the addition of time and cost to 3D models is increasing: “I am seeing more claims now about 5D evidence. Some people don’t like the term 5D for model quantification, but I see 5D quite a lot in contracts. That’s an interesting use of BIM in disputes.”

The industry’s digital transformation presents opportunities to improve a case, but that’s not without its issues. She said: “The most important thing about digital transformation in claims is actually making sure that you put together a compelling case. [But think about] putting your case forward in a way that doesn’t drown everyone with paperwork. Think about the lawyers, arbitrators, adjudicators, judges looking at this, and how they’re going to be able to understand your point of view.”

Focusing on common pitfalls, she said: “One of the most important things that I see is people forgetting to keep their own copies of models, especially at key design stages or key events. And it’s really useful to keep a back-up copy somewhere.

“This is because one of the easiest things in a dispute is you might forget that you don’t have automatic access to the CDE in the event of a dispute. One of the easiest things for a party who controls the CDE is to kick you off. Even just the threat of being kicked off can be quite stressful. So, if you can keep your own records, great. If you can download a file history from your CDE, that also works really well. If you can make sure that it includes superseded revisions – they can make really useful factual, contemporaneous evidence.”

She also warned about forgetting to keep timesheets when making variations, especially those that are out of scope.

“Emails are where a lot of project correspondence lies,” noted Henry Counsell at Ideagen, then citing the four main issues when needing to find information in emails: personal filing, lack of consistent email management, staff leaving and the sheer volume of emails.

“People often save emails to a project folder in their Outlook, which no one else can access,” Counsell said. Many businesses have a standard process for filing emails: “That is quite commonly a manual process, which consists people dragging and dropping emails out of Outlook into their relevant project folders. What typically happens when those processes are done quite manually is there’s no consistency. People are met with deadlines that compete with filing emails and it’s probably the last thing they think about.”

Turning to staff leaving, he observed: “People leave across project timelines. So mailboxes get closed, trails get lost and the questions [relating to a dispute] most likely come after the project’s done. So, trying to go back through that information is quite hard. Then, mix that in with the volume of emails, thousands per project…”

Counsell challenged the audience to test their email health by asking themselves the following questions:

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The Digital Construction Summit series of webinars is organised by CM and Digital Construction Plus. Nearly 1,500 professionals registered to watch last year’s webinars.