The case of 125 OBS (Nominees) vs Lendlease in April last year highlighted the importance of not just keeping good records, but keeping them as instructed by the contract. In the case relating to the well-known falling glass from 125 Old Broad Street in London, Mr Justice Stuart-Smith observed that “unreliable records are unhelpful to a party that relies upon those records to prove a positive case without the assistance of any witness evidence or explanation”.

Despite the advances in technology and case law of the past 20 years or so, disputes still arise on building projects. As construction lawyers, we see the same problems arising repeatedly. Though occasional disputes are inevitable, there are key factors that can help minimise the costs of such disputes. Such costs can include those such as the £1m spent on photocopying alone in the infamous Wembley stadium dispute between Multiplex (now Brookfield Multiplex as a result) and Mott MacDonald. In another case, Digicel vs Cable & Wireless in 2008, the defendants spent over £2m on document review.

But similar stories arise on projects of a much smaller scale, where costs can still swiftly become disproportionate to the sums at issue. Careful management, use and application of records in the right way and at the right time can ensure a claim is understood and resolved. No matter how good the legal arguments, successful cases depend on the underlying facts. Poorly drafted or unsubstantiated claims can lead to terrible disputes – it’s crucial to ensure you have clarity on the facts if bringing a claim, and that they are clearly set out for the other side.

So how can records help, and how might they be managed? 

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