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The impact of new technology on construction disputes

What did I do before I downloaded my Uber app? I can’t imagine life without it. The latest wave of technology is revolutionising the way construction and engineering projects are managed, and very soon we won’t be able to remember how we lived without it.

The importance of keeping site records

The current problem is that site records are often kept sporadically, if they are kept at all.  New technology, including apps that are downloaded onto the user’s mobile phone, is making record keeping more user-friendly, which in turn makes it more likely that all those involved in the project will use it. The end result should be an increase in the amount and standard of record keeping.

The courts are alive to the problem of inadequate records, and it is an issue that often attracts negative judicial comment. The question has arisen in a number of cases, including Graves v Brouwer. While it is not a construction case, the Court of Appeal commented on how the absence of contemporaneous documentation, in this case a fire officer’s report, prevented the court from understanding the cause of the fire which was the subject of the dispute.

In Brit Inns v BDW Trading Ltd, the clerk of works had kept a paper site diary, which he destroyed after the works had been carried out. The judge said:

one of the fundamental difficulties with the… claim was the absence of any record of the works actually carried out. There was no specification or schedule of works, or even a basic inventory. It is therefore impossible to say with certainty, even now, precisely what was done and, perhaps more importantly, what was not done.”

Document management

Construction projects are renowned for generating a vast quantity of documents and managing these documents, which are often generated quickly by various different project participants and circulated widely, can be challenging. Modern project managers need to manage and retain all different types of documents including contracts, drawings, programmes, correspondence and full site records.

Site records should include a diary of events that have occurred on site: works which have been carried out and, perhaps more importantly, works which haven’t been carried out and the reasons why, events which have caused delay, site weather and employer’s instructions.

Retaining site records and other material is critical as many of these documents will need to be disclosed if and when a dispute arises.

However, as the courts have noted, all too often the standard of record keeping is poor. Paper site diaries can be illegible. Discrepancies can occur when different people are tasked with keeping site records. Important information can be lost forever when site personnel change, taking their laptops with them, or when site offices close.

New technology

Excitingly, new technology is making it easier for all those involved in a project, including project managers and contractors, to keep excellent site records. This comes in the form of “apps” that can be downloaded onto the user’s mobile phone. The great thing about these apps is that people carry their phones around with them everywhere, so that updates can take place immediately, rather than waiting until the end of the day. In addition, phones are now equipped with cameras, enabling the user to take photographs recording significant events on site, and to add notes to these.

Site record apps can encourage good record keeping by issuing a series of prompts, such as “Describe the weather on site today”. They can also be used to upload a schematic of the site, to show which parts of the site are experiencing particular issues. All of the information gathered is automatically uploaded to a central database, so that nothing is lost when personnel change.

While site record apps have been used in the past, the latest apps are easier and more intuitive to use, which makes it more likely that they will be used in practice.

This ties in rather well with what the government expects of the construction industry, as set out in the Digital Built Britain Strategic Plan. BIM level 3 is the “holy grail” whereby all data is held on a centralised web-based system that can be accessed by the whole construction team. The idea is that in the near future, we will have fully computerised construction, including paperless contracts. The government predicts that the introduction of BIM 3 will lead to savings of 33% of whole life costs of construction projects.

The future’s bright…

As with any new technology, the adoption of such software may create teething problems at first. In the short term it could lead to sites becoming more, rather than less, adversarial places. Project managers could be inundated by swathes of early warning notices issued by contractors with an eye on future claims, and if disputes do arise, an increase in the number of documents might increase the costs of disclosure. Professionals may be concerned that using these “apps” may create a duty to warn in circumstances where this duty would not otherwise exist. For example, a photograph on the central database which shows that construction works are not being built in accordance with the design would put the consultant “on notice”, even though it may have no obligation to supervise the works or visit the site.

However, being able to spot mistakes early and rectify them is surely beneficial to all those involved in any construction project. With the continued industry focus on collaboration,  having accurate contemporaneous site records will benefit projects as a whole, enabling project managers to make better, more informed decisions, disputes to be resolved at an earlier stage and producing an overall reduction in the cost of construction.

Berwin Leighton Paisner LLP Richard Dupay

One thought on “The impact of new technology on construction disputes

  1. Hi Richard, I feel that the proliferation of electronically stored information has eased the documentation/records processing in the construction industry. One of the obvious strengths of electronic evidence is the increased availability of the written word – coupled with other electronic crumbs, including bits and bytes, to establish facts and events.

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