Records, Records, Records… 

As published in Lexology on 2 May 2025.

What are contemporaneous records?

Records are documents, notes, and data created at the time an event occurs. They provide an accurate and real-time account of activities, decisions, and communications. These contemporaneous records provide a basis for verifying facts, supporting claims, and documenting the project’s progress. 

Keating on Construction Contracts defines contemporaneous records as:  

“Records produced at the time, or shortly after, an event has occurred, which provide a detailed and objective account of what happened. These records are generally preferred as evidence over retrospective reconstructions or witness recollections given the potential for memory distortion or bias.” ¹

Record-keeping for dispute resolution

Record-keeping is crucial in construction and dispute resolution. Detailed documentation of every stage of the construction process helps ensure transparency, and accountability. This includes keeping track of contracts, permits, inspection reports, invoices, and communication records. Effective record-keeping aids in resolving disputes by providing evidence of agreements, changes, and the fulfilment of obligations. It also supports project management by enabling better tracking of progress, costs, and timelines. Additionally, maintaining accurate records can safeguard against legal issues, improve overall efficiency, and collaboration among stakeholders.  

In Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions (UK) Ltd [2008] EWHC 1301 (TCC), the courts emphasised the need for contemporaneous evidence to establish the factual basis for claims: 

“Contemporaneous documents, particularly those created by parties during the course of the project, remain the best evidence of the facts and circumstances surrounding a dispute.”² 

In Walter Lilly & Co Ltd v Mackay & Anor [2012] EWHC 1773 (TCC), Akenhead J reiterated the importance of contemporaneous records highlighting that contemporaneous evidence is generally preferred over witness recollection or post-event analysis.  

“The contemporaneous records will always provide the most reliable evidence of what work was done, when it was done, and under what circumstances.” ³

Accurate, and well-maintained contemporaneous records, not only safeguard your position during potential disputes but also serve as a powerful tool for demonstrating compliance, justifying variations, and validating claims. Simply put, for a quantum expert, the priorities are always “records, records, records.” 

Added insurance for when things go wrong

I accept it’s rather an old refrain, but one worth repeating.  From the start of my working life as a Trainee Quantity Surveyor over 40 years ago this request hasn’t changed – what have you got that can support the hours / the measure / the rates?  The absence of time records, marked-up drawings, and invoices, remains a thread to this day.  

Keeping sufficiently detailed records of what occurs each day isn’t an exciting prospect for the project team and can be seen as an unmerited or unwanted project cost.  However, if your project goes well, those contemporaneous records are like the insurance on your car which has never been used to make a claim, something you feel maybe you could have done without.  However, if your project goes wrong, you will be so relieved you paid that bit extra to ensure everything that has been done was recorded and logged. 

For project managers, site managers, and designers, keeping accurate notes, and diarising the day’s events, may seem like a chore when you have other work-related tasks to attend to,  or if on a break you’d rather be reading that match report from your team’s excellent win last night.  However, it is worth it.  For example, when I appeared as a witness of fact in the Technology Construction and Commercial (TCC) Court⁴ , my site notebooks were disclosed as part of the discovery process.  Where required they supported my witness statement, and thankfully, there were no contradictions in them, though the shopping list reminders were slightly embarrassing.  These days many contractors require their staff to type their site diaries into project templates, which is then stored on the project / company server.   But pen, and paper, do just as well, as long as there is a document management system to ensure these are known about and retained. 

Document management is always a requirement on construction projects. This often rightly focuses primarily on design, construction, quality, and health and safety records.  However, I would strongly advise that as part of your ‘insurance’ on a project your document management system ensures that the team are both encouraged, and required to keep records, which reflect time, progress, and conversations which will impact your bottom line. 

I recently worked on an adjudication where the daily site record sheets each had a list of 20 or so tradesmen on, and next to each it said working in areas 4 to 8.  No idea what they were doing, which rooms they were working in, and how long they spent working in each room.  Basically, they were on site for 8 hours, in 1 of four areas doing something.  The claimant wanted to pursue a disruption claim, but based on these records, it was never going to be possible to produce measured mile-type calculations. 

Therefore, if there’s a chance that your project will go sour, and most experienced construction teams are astute enough to pick up those vibes very early on, then keeping the right kinds of records will give you a strong hand to play if, and when, the day comes when you need to justify your variations, and claims, for additional time and money. 

As part of an online article in relation to Offshore Construction Disputes on the Global Arbitration Review website the authors said: “Contemporaneous evidence is frequently preferred over conflicting witness testimony, given that it is more likely to reflect the facts and is less capable of being contaminated.  ….  Parties should ensure that they have deployed an effective document management system and ensure that personnel are keeping detailed contemporaneous records.”⁵ 

Final account settlements

The last area I wish to cover is final accounts settlements.  It is another area where important details can be overlooked in the fever of wrapping-up that tricky contractor who has produced a seemingly endless number of variations, many of which, in your view, are questionable, but a number of them are related to upstream variations and/or claims you may be pursuing.  Try to resist the temptation to just either say the settlement is for all outstanding matters or list out all the previously unagreed variations.  Where possible, accurately reflect your view of the world in the signed agreement for each variation.  In the course of a matter I was involved in, I asked the claimant for supporting documentation to demonstrate an acceleration claim he wanted to make.  All he had was an instruction, a lump sum quotation, and a total final payment made to the subcontractor, which did not separately identify the lump sum. Still it was claimed to include the amount for acceleration.  It was, therefore, impossible to know whether any or all of the quoted sum was paid.   

An essential safeguard

It is often said, rather idealistically, that one of the signs of a good project is where the contract isn’t required and just gathers dust on a shelf.  When all goes well, that extra time keeping, and retaining records, may feel like a waste of time as the records gather real or metaphorical dust.  But, like that protection insurance you took out on your concert tickets that you never needed, it gave you peace of mind. 

In the dynamic world of construction, where unforeseen challenges often arise, maintaining detailed, and contemporaneous records, is not merely a best practice, it is an essential safeguard.  Whether you are negotiating variations, substantiating claims, or defending against disputes, the value of thorough documentation cannot be overstated. 

Consider record-keeping as an investment in your project’s resilience.  Just as insurance provides peace of mind for unpredictable events, well-maintained records give you the confidence to navigate complex project challenges effectively.  They are not just a safety net but a powerful tool that can transform uncertainty into clarity when the need arises. 

Final thoughts

Don’t wait for a dispute to highlight the importance of documentation.  Proactively instil a culture where maintaining comprehensive records is second nature to your team.  The time, and effort spent today, may very well be the key to protecting your company’s interests tomorrow. 

As I’ve emphasised throughout, some things are worth repeating: “records, records, records…” 

About the Authors

References

1. Keating on Construction Contracts (10th Edition, 2016) ↩︎
2. Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions (UK) Ltd [2008] EWHC 1301 (TCC)  ↩︎
3. Walter Lilly & Co Ltd v Mackay & Anor [2012] EWHC 1773 (TCC)  ↩︎
4. SABIC UK Petrochemicals Ltd v Punj Lloyd Ltd [2013] EWHC 2916 (TCC) ↩︎
5. Offshore Construction Disputes – Global Arbitration Review ↩︎