26th May 2020 – Webinar on records and record keeping / management.
Feel free to watch the video, or read the report below:
Our CEO, Paul Gibbons opened the proceedings and introduced our panellists. Joining the discussion were Charlie Woodley of Dispute Data – an expert in the management of large quantities of data for dispute resolution, Hannah Mycock-Overell a solicitor with a particular interest in technology and records at Clarkslegal, Brian King of After Premise, and David Johnson a barrister from well-known construction specialist barristers Atkin Chambers.
Paul began by noting that whether pre or post COVID-19, records need to be accurate. Referring to the book ‘Delay and Disruption in Construction Contracts’ and the CIOB’s guide to managing time in complex projects, he notes that the nature and timing of records is important. You need to be able to compare your plan with actual progress should a claim or dispute arise. Paul also notes that while site-based records are important, records of what happened off-site are key.
In recent weeks, Decipher have seen examples of very poor record keeping, often because people are not able to get on site to make the necessary records and resources are limited. Keep all different types of records: records of cost, resource, general progress. But all aspects of records are important.
Structure your Records
Hannah joins the discussion and notes the importance of well organised and structured records. If just kept in chronological order, then it will be hard for you to identify documents by theme. Ideally people should be categorising records. This should be done not by ‘general and miscellaneous’, but by event (particularly delaying event), and by area, element of project plan or contract, etc.
Ideally also keep a log of record update dates. Ensure a consistent and regular / continuous pattern of data. Having well-structured records means time and money will be saved when later trying to work out what happened on site for final account and negotiations.
Paul believes most employers should identify from their perspective what records to keep. Keeping records daily can be a challenge – a site supervisor or similar may reach the end of a busy day and struggle to keep records updated, but they are crucial. Ideally link records and notes of any disruption back to the programme.
Accuracy to Comply With the Contract
Notifications under the contract require good records. Paul suggests harnessing technology to assist with social distancing and maintain good records. For example, a drone can record details of site progress without a need for a human to enter the workplace.
Charlie has some practical tips: consider file naming structures and conventions. When moving documents electronically, check you have the same number of files when moved or retrieved. File naming is critical, because computer platforms will simply lose files if the file names are too elaborate or too long. Handling large quantities of data requires a number of checks to ensure integrity is maintained and all evidence is available.
It’s also important to ensure the original structure can be maintained or returned to. Human nature is to re-organise, but often there was a logical and thought process to the structure of documents. Consider that in the interrogation of documents.
Charlie suggests the information architecture is critical. Businesses must understand how things are set up, in order to retrieve documents. Often structures are complex, so before making decisions, ensure a good understanding of the way in which information is being used and managed exists.
Brian argues you should use the cloud and nothing else other than the cloud. Storage online and relying on other people who have strong infrastructure means the loss of data and loss of files becomes far less of a risk.
Consistent repeatable outcomes are important in Brian’s view. A structured system allows for this where keeping loose documents would not. Standards, structures, document types and files. Linking processes together
Deal with Email
Emails are a challenge. Brian mentions a tool, ‘textract’. He suggests getting documents into the document store, and then use the technology to analyse the data data. There are solutions online that can learn from people looking at data to identify behaviour and replicate it, to speed up email interrogation.
Another positive move is to take email off a project where possible, using other solutions. These have been successful on projects such as London 2012 and Tours to Bordeaux TGV line. See for example this information.
Charlie asks whether the format of records can change the success of a dispute? It is perhaps worth asking what ‘success’ looks like also – it may not just be proving your point is correct. There is a temptation to give all the data over to a third party such as a lawyer or consultant to examine, but the cost of that can be horrendous. If the right data can be identified, costs are reduced, and time saved.
During a dispute resolution process, often experts and claims consultants will want to read data, but reading through millions of emails is impractical, so technology is necessary. Some of the tools mentioned by Brian, include textract and amazon’s tools, others include Nuix / Ringtail.
Understanding what tools are available. Software can reduce costs and time but maintain accuracy and detailed analysis of data. Getting a strategic advantage is important. Therefore knowing how data is analysed is key. Work with experts to ensure you have people who understand how to manage data.
Deal with Disputes and the Contract
Hannah notes that different contracts have different requirements. So you need to have records available to meet contract requirements and demonstrate that you have done so. If your record-keeping doesn’t match the requirements of the contract, then this could be a weakness for any potential claim for cost or time depending upon what form of contract you are working under. Remember that your records must include evidence of compliance with contractual obligations, not just records the contract specifically requires you to keep or provide.
David Johnson reminds us that a number of contracts have requirements for contractors and record keeping. Check your contracts have strong enough terms to require records to be provided, and actively use those terms. Often, David finds that people have not requested and therefore do not have access to records which could and should have been requested from the contractor.
In the case of Attorney General for Falklands and Gordon Forbes (mentioned here) – the contractor had not kept good records, so tried to use narratives from staff. The judge in the case stated contemporaneous records were important. The claim failed as a result of not having those good records.
Lawyers also tend not to use photos enough, but they can be useful. It is important to identify dates if possible. Photos don’t fit into lawyers’ litigation thought processes but can be a rich vein of information and visual data. Also, emails can be a nightmare, but at the simplest level, just directing people not to create long chains of discussion and keep messaging concise can help to minimise confusion.
Paul mentions the key requirements for successful claims: Cause Effect Entitlement Substantiation. For success you must satisfy each of these.
David also notes that dispute resolution proceedings will arise in different locations. Therefore, what you produce may be disclosable and therefore may be a problem. You cannot be selective if the court requires you to supply all the documents in your project. Emails in particular can be a challenge as the anger of disputing parties will be quickly revealed – examples include Walter Lilly & Company Ltd v MacKay & Anor where the emails made it into the popular press.
New Legal Developments
New developments – a new scheme is changing the process for disclosure of documents to the court. David notes this may lead to changes in how documents are managed in legal proceedings. Details of practice note 51U can be found here – and some interesting commentary here on Gordon Exall’s blog posts.
- Record keeping is one of the most important ways to ensure you can demonstrate entitlement to payment regardless of whether a claim arises or not.
- If a claim does arise, those records will be even more important.
- Records need careful structure for success – not just chronologically, but by issue, area, etc.
- Where electronic files exist, stick to good naming. Short file and folder names. If moving files, audit to ensure all data has been moved successfully, do not assume it has.
- Make use of technological tools available – some may not be as expensive as you think.
- Use photos, and other means of recording information. Ensure locations and recording of position of photos along with dates are accurate.
- Check contract terms – each will differ in its requirements.
- Remember you will have to satisfy the requirements of:
If your claim is likely to succeed, should the matter come to dispute, or indeed if you wish to receive payment for delay or disruption, in any case, these tests should be satisfied.