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The horse has bolted from the stable, you are owed thousands and face a real struggle to survive due to one bad contract and one personality you could do without … sounds familiar? So, how do you get the horse back in the stable? Typically, if you are not facing fabricated contra charges you will be asked to substantiate your account even when you think you have done so!

We will tell you that you need records, records, records - and it may be too late. What you must do is make sure you have records which are contemporaneous, that is submitted to the other side at the time they happen. A good point to do these submissions is at site meetings where you can record what has been submitted and get confirmation of receipt. The point is when the horse has bolted you cannot then make up records and put them in as they are worthless. It is about content, timing and proof of receipt, essential in lassoing the horse and re-stabling it.

Obvious Minutes to record at site meetings are instructions and programme changes making sure entitlement (liability) is recorded. Make sure your entitlement is recorded in clear language. Quantum must then be recorded and a good way of doing this is to record extra works, disruption, acceleration or simply all operations on daywork sheets so that all resources and work done can be linked and identified. Simple!

The daywork sheet does two things, where liability/entitlement is denied or ignored by the other side it registers your claim for additional payment. Secondly, it provides the quantum involved. Simple records contemporaneously submitted. You will hear statements such as "we do not entertain dayworks"; don't be put off by this, simply say they are given for record purposes.

Depending on what contract terms are available for valuation, where fair rates and prices are required or there are no terms, the daywork sheet is persuasive. If they are not dealt with or left unsigned by your opponent that is eve n better. Here is why ….

During the foot and mouth crisis in the UK in 2001, a firm called JDM Accord were appointed by the Secretary of State to slaughter animals, bury and dispose of them. The terms were specifically payment on a time recorded basis. Daywork sheets were submitted contemporaneously, ignored and left unsigned by the Secretary of State. When the time for payment arrived, payment was refused due to unsigned timesheets leading to legal action in JDM Accord v The Secretary of State for the Environment, Food and Rural Affairs (2004). The Court held that payment of the dayworks were due in full. Having failed to sign or deal with the daywork sheets contemporaneously received from the Contractor, the onus of proof shifted to the Secretary of State to disprove them when it came to payment, which they could not do.

The implication is that daywork sheets submitted and received at the time the work is carried out will later on not need any further proof and will need to be disproved by the defending party, if left unsigned or ignored.

Powerful records giving evidence of both liability and quantum makes our job easier for you!


Author: Jonathan Nugent

Managing Director - Arbicon ADR Ltd, Chartered Quantity Surveyor, Construction Adjudicator, Arbitrator, Mediator, Expert Witness/Reports/Determination, Lecturer, Delay and Loss Analyst, Leading Authority on Construction Contracts/Law, Commercial Construction Contract Solutions and Dispute Resolution.