When dealing with document management, how can a client help themselves to get better value and outcomes?

Contemporaneous documents are key to enabling legal teams and experts to provide a coherent and supported case/opinion. It is for this reason that documentary evidence needs to be at the forefront of the mind of any project team working on a construction project (or oil and gas, energy or infrastructure etc).

Whilst no one wants to consider the prospect of disputes at the start of the project, when everyone is eager to work together and get the project completed, it is common for claims to arise during a project (i.e. extension of time claims and/or associated costs, variations etc). This can even escalate to a formal dispute either during, or often towards the end of a project where the final account is disputed.  In these circumstances, putting forward a robust position, whether claiming or defending, is paramount and that boils down to document management and storage process during the lifecycle of the project.

The importance of good documentation management

Filling cabinets and lever arch files are treated as antiques (by some!) and many construction and related organisations have already moved to either internal or project-led digital document management platforms. This all sounds very forward-thinking (and eco-friendly) and it is, however, sending documents to the cloud or similar, is only half the story. Why? Because despite the wonders of technology, the documents need to be accessible and user-friendly, which becomes increasingly important the more complex the project becomes.

Even though that sounds simple and straightforward, a convoluted or complex system (especially if across different platforms on the same project or shifts between project platforms mid-project) can unravel magnificently when it comes to disputes. The upshot is that the absence or loss of information means your legal teams lack the full complement of documents necessary to understand and effectively support or defend a claim. In addition, experts are only able to understand the issues they are being asked to opine upon, which may significantly change if the opposing party provides a wealth of documents that destroy your case.

However, the key is to always remember that a case cannot be proven without evidence, so it is the availability (and accessibility) of those documents that will ultimately become evidence in a dispute and must be preserved.

Start as you mean to go on

The best approach is to start a centralised construction (or related) data management system from the outset, whether it is on internal systems or a document platform. You might have something in place already, but remember these systems are only as good as the way they are organised and accessible to those who are using them. Plus the system needs to be easy to use for multiple stakeholders. Overall, this will ensure better collaboration for all who are working on a project as well as better control over documentation, records and documentary evidence, should a dispute arise. In the words of Max Abrahamson in his book “Engineering Law and ICE Contract”:

“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, the importance of records”

 Why accessibility is critical

I am sure many of you have been the recipient of multiple document requests from your legal teams (you will have probably noticed we quite like documentary evidence!) and experts whilst seeking to understand the merits of the case. Perhaps you have had lawyers visiting your office to help find documents. Not only is this unlikely to be an efficient use of your costs (we tend to be quite expensive document controllers), but it can also be avoided with an easily accessible and well-managed document system.

The point is we are acutely aware that the success of your claims is substantially dependent upon contemporaneous documents during the life of the project and we need to see the good, the bad and the ugly to fully understand your position and the merits of any claims brought by or against you. Furthermore, we tend to find that tribunals and judges tend to place more weight on contemporaneous documents and those of expert witnesses than on witnesses of fact given that accurate recollection erodes over time.

Thus, keeping a clear and accurate documentary record of meetings, events, emails letters, claims, programmes, variations, designs etc, and the storage of those documents (including any paper documents or notes and on-site diaries) should always be at the forefront of your mind from the outset of the project.

In short, the importance of documents and the approach to the management, storage and accessibility of those documents should never be underestimated. Not least for the smooth running of the project itself, but especially so if you find yourself in a dispute. Just as cash is often the lifeblood of a project, documentary evidence is the lifeblood of a successful dispute.

Posted by: Lucy Bushell

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