Record keeping: The art of self-defence

Sir John Egan, Sir Michael Latham, the NEC, and partnering in its many guises have been preaching the no-blame culture to us for years. Laudable though that is, don’t be fooled. After the reassuring exchange of mutually supportive words, everyone rushes off at the first opportunity to scribble down how the fault lies entirely with someone else.

Still, all is fair in love, war and the keeping of records. Many a justified case has been lost for want of them.

At best, record keeping is boring. At worst, you’ve drawn a blank on blaming others for an incident and there’s no avoiding the unpalatable fact that the error was actually yours. Now you are forced to relive, in line after painful line, an experience that was humiliating enough the first time around. But the other parties’ take on your error will inevitably be less charitable than your own, so, as a matter of damage limitation, you would normally do best to commit your own account to paper in the most favourable terms your conscience will permit.

To count as good evidence, your records need to be “contemporaneous” in the legal sense, by which I mean recorded within a few weeks of the incident at the latest. It is theoretically possible to add subsequently to incomplete records, but only in very limited circumstances, and, as a general rule of thumb, you should assume you are never going to be that lucky.

Although the law offers a “privilege” from disclosure for certain documents in specific scenarios, such as preparation for litigation, you should bear in mind that words such as “confidential” optimistically stamped on your document are legally ineffective and will guarantee the undivided attention of anyone who happens across it.

Record keeping does not just cover minutes of meetings. For example, working drawings, photographs, memos and daybooks can all prove invaluable as evidence. But how long must you store this enormous mass of information? There is no easy answer.

You should Bear in mind that words such as ‘confidential’ optimistically stamped on your document are legally ineffective and will guarantee the undivided attention of anyone who happens across it

Your liability (“limitation”) period could be anything from three to 15 years from the occurrence of the error, damage or injury. But if you haven’t got your head around the minutiae of limitation periods as yet, then I would not suggest you bother at this stage unless you really have to, as they all may change if the Law Commission’s proposals come to fruition.

Suffice it to say that the RIBA, for example, currently advises a minimum of 18 years to cover most likely periods of liability. Notably, the RIBA is not the one that has to store your documents. Nevertheless, it is probably reasonable advice, calculated on the basis of the worst likely scenario in English law of 15 years (25 in Scotland, mind), plus some leeway for the common legal tussle over precisely when the period should commence. However, even that may not protect you if you have given an indemnity. That can as much as double your liability period if you are unlucky.

Such long-term storage can pose quite a problem, particularly for those still relying on paper files. Many such firms take a chance and determine how long they keep documents according to their assessed risk of a claim. An uneventful job abandoned at design stage is less likely to result in a claim than a completed job memorable for its series of avoidable disasters.

If you take this selective approach, stamp a bold “Do not destroy before …” instruction on each file while you still have some inkling of what it is all about and check with your professional indemnity insurers. They may be less than enthusiastic about your liberal culling of old files and, with them, any hope of a defence to a claim.

More commonly, firms rely on the electronic storage of information. However, if its authenticity is challenged, you must prove that it originates from its purported source, has not been tampered with and that your computer system complies with the relevant standards. Not always easy.

If, despite your best efforts, you still find yourself in court giving faltering evidence based on fading memories and a scrappy note which looks like something the cat coughed up, then at that point there is only one piece of advice worth having. On no account look at the judge. His eyebrows are bound to be hovering somewhere around his wig line and it will only put you off.