Powerful construction records giving evidence of both liability and quantum makes it easier when resolving disputes. Here, Jonathan Nugent, managing director at Arbicon, discusses the importance of keeping records throughout construction works
You are owed thousands of pounds and face a real struggle to survive due to one bad contract and one personality you could do without…sound familiar? So, what do you do? Typically, if you are not facing fabricated contra charges you will be asked to substantiate your account, even when you think you have done so!
We will tell you that you need records, records, records – and it may be too late. What you must do is make sure you have records which are contemporaneous, and that are submitted to the other side at the time they happen.
It is good practice to do these submissions at site meetings where you can record what has been submitted and get confirmation of receipt. When an issue arises, you cannot then make up records and put them in as they are worthless. It is about content, timing and proof of receipt.
What are daywork sheets?
Obvious minutes to record at site meetings are instructions and programme changes, making sure entitlement (liability) is recorded, which must be in clear language. Quantum must then be recorded and a good way of doing this is to record extra works, disruption, acceleration or simply all operations on daywork sheets so that all resources and work done can be linked and identified. Simple!
The daywork sheet does two things:
- Where liability/entitlement is denied or ignored by the other side it registers your claim for additional payment.
- Secondly, it provides the quantum involved.
Simple records contemporaneously submitted. You will hear statements such as “we do not entertain dayworks”; don’t be put off by this, simply say they are given for record purposes.
Depending on what contract terms are available for valuation, where fair rates and prices are required or there are no terms, the daywork sheet is persuasive. If they are not dealt with or left unsigned by your opponent that is even better. Here is why ….
Daywork sheet example: JDM Accord v The Secretary of State for the Environment, Food and Rural Affairs legal action
During the foot and mouth crisis in the UK in 2001, a firm called JDM Accord was appointed by the Secretary of State to slaughter animals, bury and dispose of them. The terms were specifically payment on a time recorded basis.
Daywork sheets were submitted contemporaneously, ignored and left unsigned by the Secretary of State. When the time for payment arrived, payment was refused due to unsigned timesheets leading to legal action in JDM Accord v The Secretary of State for the Environment, Food and Rural Affairs (2004).
The Court held that payment of the dayworks were due in full. Having failed to sign or deal with the daywork sheets contemporaneously received from the Contractor, the onus of proof shifted to the Secretary of State to disprove them when it came to payment, which they could not do.
The implication is that daywork sheets submitted and received at the time the work is carried out will later not need any further proof and will need to be disproved by the defending party, if left unsigned or ignored.
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