Claimpreparationandprojectrecords 2014

2014 Construction Law Conference:
Claim Preparation and Project Records

Thursday, 6 February 2014
Ben Worthington, Senior Associate

ben.worthington@olswang.com | + 44 20 7067 3541 | @disputes_lawyer
Introduction
Why are project records important?
Record keeping under the standard form contracts
Contractual requirements for keeping records
FIDIC
JCT SBC
NEC
Establishing claims
Common deficiencies
Practical guidance
#olswangconstruction
www.constructiveblog.com
Why are project records

important?
Claims
Management of change
Loss of trust
Entrenchment of views
Poor record keeping will be found out!!
Requirements in standard form

contracts FIDIC
Monthly progress reports
Detailed descriptions of progress relating to design, manufacture, delivery to
site, construction, erection and testing;
Photographs showing the status of manufacture and progress on the Site
Where Plant and Materials form part of the Works, details of the
manufacturer, inspections made by the contractor, tests, and key dates of
manufacturer, shipment and delivery
Lists of notices given by either party

contracts FIDIC
Monthly progress reports (continued)
Safety statistics
Comparisons of actual and planned progress, with details of any events or
circumstances which may jeopardise completion with details of measures
being adopted to overcome delays

contracts FIDIC
Establishing claims under FIDIC
The Contractor shall keep such contemporary records as may be
deemed necessary to substantiate any claim the Engineer may, after
receiving any notice under this Sub-Clause, monitor the record-keeping
and/or instruct the Contractor to keep further contemporary records
(20.1)

contracts JCT 2011 SBC XQ
Claims for extensions of time (2.27)
The contractor must:
give notice of actual or likely delay
give particulars of the expected effects of any delay
shall supply such further information as the Architect/Contract
Administrator may at any time reasonably require."

contracts JCT 2011 SBC XQ
Claims for loss and expense (4.23)
Contractor must submit:
such information as should reasonably enable the Architect/Contract
Administrator to form an opinion; and
such details of the loss and/or expense as are reasonably necessary
for such ascertainment.

contracts NEC 3
All important communications must be in writing as verbal communications have
no contractual relevance
Stringent requirements in respect of the provision of programming information
Disallowed Cost
Disallowed Cost is cost which the Project Manager decides
Is not justified by the Contractors accounts and records (11.2(25))

contracts NEC 3
The Contractor keeps these records
Accounts of payments of Defined Cost,
Proof that the payments have been made,
Communications about assessments of compensation events for
Subcontractors
Other records as stated in the Works Information (52.2)
Establishing claims
The claimant will need to show:
Contractual pre-conditions
The other party was contractually responsible for the event (liability)
Loss was actually incurred (damage)
Such loss was caused by the event for which the other party was responsible
(causation)
Establishing claims
John Doyle v Laing (2004)
For a loss and expense claim to succeed, a claimant must aver and prove
three matters: first, the existence of one or more events for which the
defendant is responsible; secondly, the existence of loss and expense
suffered by the claimant; and thirdly, a causal link between the event or
events and the loss and expense."
Establishing claims
To establish entitlement as a result of a delay will require:
Documents
Witnesses of fact
Delay analysis
Establishing claims
Keating (9th Ed):
Delay analysis should be based as far as possible on contemporaneous
evidence of what actually happened on site during the progress of the
works [it is] only as reliable as the data upon which it is based. It
should be emphasized that such analysis, of course, can never be a
substitute for relevant and convincing factual evidence.
Establishing claims
Great Eastern Hotel Company Ltd v John Laing (2005)
The delay analysis took "no account of actual events which occurred on
the Project and gave rise to a hypothetical answer".
Establishing claims
Cleveland Bridge UK Ltd v SeverfieldRowen Structures Ltd (2012):
it is necessary to show that the claiming party was actually delayed by the
factors of which it complains; it simply does not follow as a matter of logic,
let alone practice, on a construction or fabrication project, that, simply
because a variation is issued or that information is provided later than
programmed or that free issue materials are issued later in the programme
than envisaged originally, the claimant is delayed.
Establishing claims
In summary:
Claims must be based on reality
Positive evidence of causation
Tribunals are essentially concerned with practical issues, not theoretical
arguments about delay analysis
Common types of deficiencies

Project documentation often turns out to be insufficient, inaccurate or unreliable
Failure to identify actual man hours and costs associated with discreet items of
additional work or additional time
Failure to record productivity by activity
Failure to record day to day reporting of what is happening on the site, through
progress reports, diaries etc
Common types of deficiencies

Why do problems occur?
Low priority
Expensive
Pressure
Experience
Practical guidance
Contemporaneous documents
Contractual requirements
Robust procedures
Training
Auditing
Types of documents:
Programmes
Work records
Records that explain delay
Costs records

Claimpreparationandprojectrecords 2014

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2014 Construction Law Conference:

Claim Preparation and Project Records

Ben Worthington, Senior Associate

Why are project records

Requirements in standard form

Requirements in standard form

Requirements in standard form

Requirements in standard form

Requirements in standard form

Requirements in standard form

Requirements in standard form

Common types of deficiencies

Common types of deficiencies

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