What UK courts say about site records

When a construction job ends in a dispute, the people who decide it weren't on site. Adjudicators, arbitrators and judges have to work out what happened from the records. These five cases from UK courts show what that means for the people who keep those records, from the site diary to the daywork sheet.

This is a plain-English summary for site staff, not legal advice. Your contract and your commercial team come first.

1. Records beat memories

Gestmin v Credit Suisse (2013). This wasn't a construction case, but it changed how judges treat evidence in every kind of business dispute. Mr Justice Leggatt said the best approach was “to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”. Judges have followed that approach since, and parts of it are now written into the court rules.^[1]

What it means on site: what you wrote down at the time counts for far more than what anyone remembers later, including you. A diary entry made on the day will usually be believed over a witness statement written a year afterwards.

2. A notice two days late can lose the whole claim

Van Oord v Allseas (2015). A joint venture laying a gas pipeline in Shetland hit deep peat on 11 or 12 October 2011. Their contract said they had five days to give notice, and that missing it would lose them the claim. The notice should have gone in by 17 October. Their letter went on 19 October. They said they had first thought the peat was just an isolated pocket, but the judge found there was no evidence to support that. The letter also referred to the wrong part of the contract, so the judge didn't accept it as a notice at all. On top of that, he found the ground wasn't different from what the contract documents described, so the claim would have failed anyway.^[2]

What it means on site: when something stops the work, pass it on that day to whoever gives notice under the contract. Write down what you saw and when. The contractor's explanation for the gap failed because nothing written at the time backed it up.

3. On JCT jobs, a late notice of extra cost may be fatal

FES v HFD Construction Group (2024). JCT contracts ask the contractor to tell the client about loss and expense, meaning the extra cost caused by a delay or disruption, as soon as possible. In this case, Scotland's appeal court decided that giving that notice is a condition of being paid. In other words, if the notice is late, the money may not be paid at all. Courts in England and Wales don't have to follow a Scottish decision, but they are likely to take it into account. The 2024 edition of the JCT contracts came out before the judgment, so it doesn't settle the question.^[3]

What it means on site: treat “as soon as possible” as meaning today. If a delay is costing money, make sure the people who send notices know about it the same day.

4. Records need to be good enough, not perfect

Walter Lilly v Mackay (2012). The judge, Mr Justice Akenhead, rejected the idea that a contractor has to produce every possible document before its extra costs can be agreed. The architect or quantity surveyor has to be able to be satisfied that the cost is likely to have been incurred, but in his words, “they do not have to be ‘certain’”. The consultants who wrote up the case also made the opposite point: poor records are where weak claims start.^[4]

What it means on site: you don't need to write an essay every day. You need facts that someone else can check: times, names, quantities and what changed from the plan.

5. On NEC jobs, the eight-week rule has an exception

Northern Ireland Housing Executive v Healthy Buildings (2014). NEC contracts say a compensation event must be notified within eight weeks of becoming aware of it, or the price and the dates don't change. The rule doesn't apply when the event comes from the Project Manager or the Supervisor giving an instruction or a notification, issuing a certificate or changing an earlier decision.^[5] In this case, under an NEC3 consultancy contract, the Northern Ireland Court of Appeal found that the client had given an instruction that changed the work, and that the consultant's claim was not out of time.^[6]

What it means on site: don't rely on the exception. Pass on anything that might be a compensation event well within the eight weeks. Write down every instruction you're given, who gave it and when, because whether something was an instruction at all is exactly what gets argued about.

What these cases add up to

1. Write it on the day.
2. Stick to facts that can be checked: times, names, quantities.
3. Pass delays and extra costs on the same day, so notices go in on time.
4. Write down every instruction, who gave it and when.
5. Make sure your records agree with each other.

For how to do each of these, see what to record in a site diary, how to record a delay on site and labour allocation vs timesheets.