National Feature: How to help an Expert? Provide Good Quality Records...

How to help an Expert?
Provide Good Quality Records...
David Palentine, Quantum Expert, Diales

As an Expert we have a duty to help the Tribunal. For example, in Litigation, Civil Procedure Rule 35.3 states:

  1. It is the duty of experts to help the court on matters within their expertise;
  2. The duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Our Clients and instructing solicitors are also looking for help and they often require the Expert to:

  1. Provide quick preliminary report/assessments;
  2. Describe complex issues in such a way that they would be understood by a lay person;
  3. Provide details of the strengths and weaknesses of the disputed matters, and
  4. Narrow down and agree issues.

To be able to provide this help, irrespective on how experienced and knowledgeable an Expert is, an Expert requires good quality records so that he/she can carry out their investigations, prepare their assessments, arrive at their opinion and present them in a manner that is clear and concise.

Typical records that help Quantum and Delay Experts to assess time and money claims made by contractors under say JCT and ICE Forms of Contract include:

  • Measured works – to measure and value the works, marked up drawings are required detailing the scope of the work so that the quantity of works can be taken-off which can then be priced using the rates (or analogous rates) taken from the bills of quantities.
  • Variations – to value the variation, copies of the engineers/architects instruction are required describing the variations as well as copies of the original and revised drawings so that the extent of the variation can be identified, measured and priced. Documentation including allocation sheets and invoices should also be retained and provided for those variations where existing rates cannot be used and photographs and video evidence is very helpful here.
  • Dayworks – to price the dayworks, copies of plant and labour allocation sheets ideally signed by the Contractor and countersigned by the Contract Administrator/Clerk of Works etc are required so the hours worked can be ascertained plus copies of the schedule of daywork rates, plant hire and material invoices so that the works can be priced.
  • Prolongation claims – to ascertain the loss and/or expense, time related cost records are required, including staff attendance records and salary/payroll records, office accommodation hire costs/invoices, site vehicles invoices, security invoices, utility services invoices and insurance premiums.
  • Disruption claims – to ascertain the loss of productivity a measured mile type of exercise is required. To do this a detailed breakdown of the planned labour hours is required and these need to be checked to determine whether they were reasonable, i.e. the contractor was able to achieve the planned hours when the contractor was not disrupted. Labour allocation sheets are also required to ascertain the actual labour hours as well as copies of the variation account to determine the labour hours recovered through variations. This will assist in ascertaining the loss and expense over and above that which would have been incurred were it not for the disruption events that the Employer is responsible for.
  • Delay/Extension of Time claims – to determine when delays occurred and the events that caused them as well as to ascertain entitlements to extensions of time numerous records are required. These include hard copy and electronic copies of the baseline/accepted programme, revised programmes, progress reports, minutes of meetings, progress photographs, video footage, diaries and notebooks, as-built records, letters, emails etc covering the relevant events.

Whilst the NEC Form of Contract uses very different terminology, the principles are the same. In order for an Expert to produce a comprehensive report, good record keeping will be required to properly assess any compensation events which have arisen and where Option C and D applies, full financial records will be vital to support the Defined Cost calculation and to help the Project Manager when carrying out a Defined Cost audit.

Many of the important records here are now kept electronically on document management systems. If such systems are used, it is vital that all records are uploaded, retained and easily found in the event that they are required to be provided to an Expert.

Having good quality records helps those involved in the proceedings to establish a more thorough understanding of the real issues in dispute; minimises the length of any witness statement that may be required to fill in any gaps in the evidence. This in turn helps to facilitate the resolution of dispute at the earliest possible juncture and minimise the cost of the proceedings.

These are the views of the author and not of Barton Legal, and should is not to be treated as advice or guidance