Author: Corbin Devlin
Construction disputes often get resolved in favour of the party with the best records. Right and wrong may have little to do with it when only one party has the advantage of a daily record to support its’ version of events. A good diary, in addition to serving a practical purpose, is sometimes key evidence in a contract dispute.
Why keep a diary?
Why keep a diary?
- What appears to be a routine discussion, instruction or decision may become a key issue down the road, in a dispute.
- Individuals can legitimately have very different perceptions of the same events and discussions, particularly as memories fade. And sometimes witnesses bend the truth. What seems to have been a point of agreement on site may be hotly disputed months or years later in the context of litigation.
- Diaries are admissible in court and can be used to assist witnesses to refresh their memory of events.
- The courts place more weight on a contemporaneous record – such as a diary - than on the testimony of a witness (if that testimony is unsupported by any record).
- A good diary can be essential to proving facts in court or arbitration.
Do’s and Don’ts
- Do – require your project managers, superintendents and perhaps others to keep a diary.
- Do - use the diary to record the progress of the work, meeting minutes, instructions and decisions, events and disagreements, equipment and personnel on site… what is important may vary depending on the nature of the work, the nature of the contract, and the other daily project records (it is not necessary to repeat information that is already recorded).
- Don’t - record disparaging remarks or profanity. It is too common that diaries include embarrassing comments; remember that the diary is a business record and may be viewed by others. Personal remarks on the other hand (e.g. “KFC for lunch again today…) are fine and may even lend credibility to the record.
- Do - implement a policy of retaining work diaries along with other project records.
- Don’t - rely on the fact that the other party is recording meeting minutes – unless you receive, review and correct the minutes.
- Do - ensure that your or your lawyer get your hands on the diaries kept by the other party when you are in a dispute.
- Don’t – rely on a diary as a substitute for documentation required by the contract (e.g. notice of claims, documentation of changes).
In court or arbitration, a good record of events - such as a superintendent’s diary – is invaluable. It can level the playing field if both parties have kept such records. It can determine the outcome if not.