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Disputes and Record Keeping – a discussion with Hannah Mycock-Overell

06 March 2018 #Construction

What are the most common types of dispute you come across?

There tend to be three or four typical types of dispute. They generally fall into the categories of:

  1. Non-payment – whether in full or in part.
  2. Changes and variations to the works.
  3. Delay and disruption - whether that be to progress or to completion of the project.
  4. Defects or quality - whether in the design or as a result of alleged poor workmanship.

Why do these disputes tend to arise and how can they be mitigated?

 The common causes are threefold. They include:

  • Failure to administer the contract properly. This might stem from a misunderstanding or lack of understanding as to the content of the contract. It’s a common mantra among construction lawyers, but it’s crucial to recognise the importance of the contract. It ought to be a management tool, not placed in a drawer, hoping it’ll not be needed.
  • Poor communication on site can also lead to disputes. Often a dispute could have been avoided much earlier, had parties spoken or communicated better with each other.
  • Poorly drafted or unsubstantiated claims can lead to terrible disputes – it’s crucial to ensure clarity if bringing a claim. The horror stories are well reported – Wembley Stadium for example cost both sides millions and led to the demise of a well-known contractor. But similar stories arise on projects of a much smaller scale. Careful use and application of records can ensure a claim is understood and resolved.

If dispute needs resolving, what are your recommendations for records and structures?

The objective in any dispute is to prove what a party seeks to assert (or to disprove it if appropriate). Therefore, structures will be project and party specific. I’d never seek to dictate how people should keep records. They can be in paper or electronic form. They might cover anything from site diaries to variation orders to photographs.

However, it’s important to organise records in such a way that they’re easily searchable – to locate categories of documents, and also documents with specific content. There ought to be a structure to any record keeping system.

The most important thing should your dispute reach a tribunal or court, is what you can prove happened, rather than what actually happened. Keep notes of conversations, confirm matters discussed orally in writing. The better and more structured your record keeping, the more chance of success should something need resolving.

How should records be handled if an issue or dispute arises?

If an issue arises on a project, create an issue file. Store all the documents relating to an issue contemporaneously. That will make it a lot easier to identify the chronology as and if the dispute escalates. Such a file will be an invaluable resource if third parties are required to examine the claim. If the records can be identified, much time and effort can be avoided.

There are sophisticated document management systems available. But these systems are only as good as the discipline of the people using them. Even the most expensive DMS can be rendered useless through poor discipline or training. A project can generate thousands, if not millions of emails. It’s therefore crucial to keep identifiable records on a project-by-project and issue-by-issue basis.

What about photographic records?

Photographic records can be useful in resolving a dispute. Some part of the project may be concealed post completion. A photograph can demonstrate what that item is and how it was installed.: for example, M&E systems which are often inaccessible post completion.

However, a photograph must be useful. Like other records, they need to be traceable, identifiable and it must be easy to tell when in the construction process the photograph was taken. Most modern cameras can store that information in the meta data of the image. Camera phones can usually store a GPS location of the photograph, but even better to record the geographical location accurately. Crucially, make sure the photographs make it off the device and into the central record system.

Concluding notes:

In conclusion then, disputes will almost inevitably continue to arise. However, much of the pain and substantial amounts of expenditure can be avoided.  Keeping and managing records in such a way that they can be quickly and easily retrieved can pay dividends in the long-term. Well-structured records will help in the event it should become necessary to resolve a dispute.

Clarkslegal, specialist Construction lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Construction matter please contact Clarkslegal's construction team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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