Nobody likes paperwork, but when dealing with an activity like construction that is unpredictable and expensive, paperwork (to borrow a phrase from The Last Kingdom) is all. Contemporaneous paperwork, that is. It’s no good describing it months afterwards; if you have a record from the day a court will consider that to be much better evidence. If you are trying to claim - or reject a claim - for additional time or money it doesn’t matter what actually happened; all that matters is what you can prove happened.
The best place to start building up that proof is the site diary. All sites should have diaries kept, but in reality not all contractors bother, and the quality of information recorded is extremely variable. Site diaries should record, amongst other things:
- Which persons were on site and at what times;
- What deliveries were made, at what time, by whom and of what;
- The weather conditions, including temperature and rainfall;
- Any site instructions from the client and/or contract administrator;
- Visits from any authority, for what reason and what was said;
- Any accidents, incidents or near-misses, who was involved, when and what happened;
- Any disruptions to the progress of the works; and
- Any other events or activities such as completion of a part of the Works or receipts of documentation.
This is going to be a faff (technical legal term, that) but if you don’t have contemporaneous records, you can’t prove what happened. You can’t prove your entitlement to an extension of time, or to loss and expense, or of an instruction that was never followed up with formal paperwork. You can’t prove that you are owed money, or what happened if there is an accident or near-miss. It’s difficult to show that you were proceeding regularly and diligently with the works if the site diary records nobody working on site. It’s impossible to claim for adverse weather conditions if you haven’t recorded temperature, rainfall or snow.
Other records, of course, are important too. Minutes of site meetings, for example. Minutes will only hold formal status as a record if they are issued and signed on behalf of those attending, but they can be useful to build up a picture. A recent dispute happened because an action fell off the radar in site meetings - it should have been a “matter arising” but it got missed on one agenda and never made it back until it held up the entire project for 8 months. A while ago I had to advise on a situation where the site minutes has not been signed, so the court couldn’t give them the weight as evidence that they should have had. A claim for an extension of time was rejected because there was nothing to prove that the Employer had impeded progress – and so there was no loss and expense either. A 10-day letter threatening termination for lack of regular and diligent progress could not be countered, as nobody had bothered filling in the site diary showing how many people were on site, so the contractor was terminated for breach and successfully sued for damages. It happens, with monotonous regularity.
Don’t let it happen to you. Paperwork is all. It may be a bit of a pain, but you’ll lose out without it.