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Records, Goldmines and Pitfalls

Records, Goldmines and Pitfalls

Zulifqar Ali, Associate Director, Driver Trett UK explains the importance of records and their details.

I have on many occasions heard people use the phrase ‘It’s not worth the paper it’s written on’, the question is, is it true?

In his book ‘Engineering Law and the I.C.E. Contracts’, Max Abrahamson famously said “A party to a dispute, particularly if there is an arbitration will learn three lessons (often too late) the importance of records, the importance of records and the importance of records”.

Generally, records fall into two categories those that are mandatory and those that are discretionary.  Mandatory records are those required by the Contract (i.e. Notices, etc.), test results and those statutory records required to satisfy such matters as Health and Safety at work. Discretionary records are those that are project specific such as progress updates, general correspondence, daywork, etc.

A robust claim is generally founded on the quality and detail of the project records, e.g. progress updates. The emphasis on maintaining detailed contemporaneous records cannot be stated enough.  At the start of any project, a proper system should be established to keep accurate records of the events occurring on site in a secure and central location, which is organised in such a way that the relevant details can be easily extracted. 

In my experience, I often find that contractors lack contemporaneous records, or where there are such records the quality and content of those records is not sufficiently detailed.  One extreme example that comes to mind was when the only record on a daily allocation sheet was the weather despite other contract and varied work being carried out.  It is good practice to keep records, but it is more important to ensure that the records contain the right detailed information.

Daily allocation sheets can be used in a claim for an extension of time, providing they include as-built data such as activities being worked on, details of any delays or issues impacting productivity, receipt of any instruction, adverse weather conditions, etc.

In addition, in my experience contractors very rarely keep detailed records relating to variations, it is often the case that the only information available is the issue date and the value of the variation(s). Contractors often do not record as-built data, such as the activities that were affected by the variation(s) and most importantly the dates the varied work was undertaken.  An extension of time claim relating to delays caused by variations can fail from the lack of detailed contemporaneous records. 

It is also important to note that a record of what is not being done and a reason for that is often more important than a record of what is progressing.

In the modern electronic age, it is relatively simple to create an excessive amount of records.  For instance I am often presented with a voluminous amount of photographs showing such things as pipes in trenches and corridors lined with plasterboard, without any reference to the timing, the location, or what they purport to show.  Therefore, any benefit is limited.

I initially questioned the validity of ‘It’s not worth the paper it’s written on’, the fact is the saying holds merit, detailed records are the backbone to any claim. Without details the claim is not worth the paper it’s written on!  As they say……it’s all in the detail!

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