Substantiation of claims - Building Contract Claims - page 152

time may find it difficult to argue later that he was in delay, when seeking
an extension of time. Minutes that are not recorded as agreed in later
minutes have a reduced value, somewhat similar to personal notes.

9.2.6 Site diaries

Site diaries are useful, but they sometimes contain entries that may be
embarrassing to the person putting them forward. Diaries kept by each
side, e.g. by the contractor and the clerk of works, may well differ in their
recording of the same events. The court's attitude in such cases is shown by
the approach of Judge Sir William Stabb in Oldschool v. Gleeson (Construction)
Ltd , where there was a conflict between the diaries kept by a consulting
engineer and the site agent. The judge said:

'I found [the agent's] diary entries unsatisfactory, in the sense that they
do not record warnings and complaints when, as I believe, these were
given. I cannot believe that the district surveyor could have written in
these terms on 21 March if [his assistant] had not in fact given the same
warning, and yet not a hint of it appears in [the agent's] diary; which,
together with other instances, leads me to think that he was not anxious
to record criticisms or complaints when they were made, and where such
appear in [the engineer's] diary and not in the diary of [the agent], I am
bound to say that I have no hesitation in accepting [the engineer's]
contemporaneous record as being the accurate one.' 435

Site diaries are, however, often useful as substantiating evidence as to
progress. The evidence of the diary may be quite crucial if there is no
other evidence.

9.2.7 The narrative

At one time every claim used to start with a 'narrative' telling the story of
the claim - a piece of writing of dubious value, because it tended to be
loosely assembled and worded and poorly substantiated. Such text cannot
stand up to rigorous examination. One such example stated:

'The work was becoming increasingly complex.'

That kind of vague statement invites the architect to ask questions which
may be impossible to answer: how complex was the work originally? How
do you measure complexity? At what rate did the complexity increase?
How complex was it when it had stopped increasing? Regrettably, narra-
tives are still employed in order to achieve, by emotive means, what really
needs detailed evidential substantiation. If a narrative is used at all, it
should be concise and merely for the purpose of setting the scene.

435

(1976) 4 BLR 103 at 117 per Sir William Stabb J.