Good records, stemming from information management best practice, can act as both a shield and a sword in disputes, according to an in-house lawyer at Buro Happold.
Ellie Greatholder, UK director for commercial and legal at Buro Happold, gave an in-house lawyer’s perspective on information management’s role in easing and avoiding disputes during last week’s webinar on the topic, organised by Construction Management and BIMplus and sponsored by Mail Manager.
“My top tip is to treat every record as if it were associated to a developing dispute so you can spot gaps and vulnerabilities in the information from a perspective of heightened awareness,” she said.
She noted the vast array of information now available. “What records are we talking about? There’s a huge range of information that counts as a record – fundamentally any kind of record of anything that happens during a construction project: photographs, site diaries, time sheets, hand-written notes in meetings, text messages, and messages on WhatsApp. I’ve even heard of Snapchat being used recently.”
Greatholder noted that “accurate and focused records reduce conflict due to the ability to reconstruct events – it helps you to tell the story with evidence”.
She quoted case law from Attorney General for the Falkland Islands v Gordon Forbes Construction (Falklands) Ltd (No. 2) [2003] 6 BLR 280: “Where there is no contemporary record to support a claim, the claim fails.”
Greatholder said: “In my experience, the party with the most records is most likely to win. If it can’t be evidenced, it didn’t happen. That’s why information management matters.
“Contemporaneous records are not witness statements given after the fact,” she emphasised.
Liability scope widens
Greatholder highlighted the impact of the extended limitation periods introduced by the Building Safety Act. The act extends a claimant’s right to bring a claim under the Defective Premises Act from six years from completion of a dwelling to either: a 30-year limitation period for dwellings completed before 28 June 2022; or 15 years for dwellings that are completed after 28 June 2022.
“This is a huge widening of the scope for potential liability, often very long after the right to bring an action in the contract has expired,” she said.
The act also widens the scope for claims. Greatholder added: “A huge practical challenge for buildings completed before 28 June 2022 is proving the condition of the property at completion. It’s important that we start considering now the extent of available evidence in preparation for any potential claims.
“It’s important to identify any high-risk projects and retrieve any documents that we have, store them very safely and amend our document retention policy accordingly.”
She also noted that the limitation period might reset upon completion of any remedial or refurbishment works.
In the Q&A, she said she would prefer for the BIM Execution Plan to be a contractual document, “primarily for the certainty for who’s responsible for what, but I appreciate that that might not always be commercially viable”.
Where’s your information stored?
In the second half of the webinar, Mail Manager enterprise account executive Huw Knipe delved into the company’s latest research. This shows that a third of the 550-plus respondents are very concerned about their project information not being readily available.
Heightening that worry, the 2023 State of AEC Project Management Research Report also reveals that the number of businesses experiencing disputes is rising. A total of 91% of the respondents reported a dispute. That’s an increase from the 2021 report’s figure of 63% and the 2022 report’s 78%.
Project scope changes, payments and timeline disagreements continue to be the leading causes of these disputes. And email remains easily the most used project correspondence tool.
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