Maintaining A Paper Trail: Documents And Effective Dispute Management

Author:Ms Niav O'Higgins and Mary Liz Mahony
Profession:Arthur Cox

Construction disputes come in all shapes and sizes. From the smallest building to the most complex feat of engineering, unfortunately, any construction project can give rise to claims, both before completion and often a considerable period of time after. Whilst none of us like to imagine that the parties will end up in dispute, it is important to ensure that you are well prepared and able to fight your corner, should a dispute arise. There are a number of ways in which you can do this, and by being prepared, you will find that many issues can be resolved quickly and without the need for recourse to formal dispute resolution processes.

Know your rights and obligations

The first step is understanding your rights and obligations in respect of any works undertaken, whether as employer, contractor, sub-contractor or consultant. There is no substitute for having a properly executed contract or agreement in place which accurately reflects the bargain reached with your counterpart and sets out clearly what it is you have agreed to do, and what you will receive in return. A claim for breach of contract can be brought up to six years, or even twelve years (if the contract is under seal) after practical completion. Unfortunately, it is not unusual for parties to realise some years after the fact that there is no formal agreement or appointment in place or that despite negotiations having taken place between them, no formal agreement was ever signed, or the agreement that was signed, does not say quite what you thought it did!

Maintain good records

The preservation of good records is a crucial aid to establishing what, in fact, happened on site and how a particular situation or issue arose or was managed at the time. Too often, people are forced to rely on their memories in formal proceedings, with the inevitable result that both sides "remember" things slightly differently. If one party can refer to a contemporaneous note , this will usually be considered better and more convincing evidence by a court or arbitrator, than the conflicting testimony of the opposing party's recollections. In addition, it is not unusual for employees to move on, and often the employee with particular knowledge of the issue concerned has left the company. It must be asked – what happens when there is no-one left to do the "remembering"?

The maintenance of good records is particularly important in circumstances where the employer is one step removed from works. A clear...

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