Acting Judge Sanders held that "contemporary records" in the FIDIC conditions meant original or primary documents or copies produced or prepared on or about the time giving rise to the claim. These documents could be produced by the contractor or the employer. However, contemporary records did not mean witness statements that were produced long after the event. As a result, where there were no such contemporary records in support of a claim, that claim must fail. Witness statements could only be used to identify or clarify contemporary records but not substitute them.
Clause 53 of the FIDIC conditions deals with procedures for claims, and requires a contractor to give notice of claim to the engineer (with a copy to the employer) within 28 days of the event arising. It is not unusual for notices to be sent late, or indeed not be sent at all. Contractors often bring claims long after the event, and often a failure to service notices is not fatal to contractor claims. However, clause 53 requires the contractor to keep contemporary records in order to support the claim. It seems clear that a failure to keep those contemporary records will effectively mean that the contractor is unable to support his claim and that the claim will fail. The case emphasises the need not only to give notice at the time of the claim, but also, and perhaps more importantly, to ensure that contemporary records are kept in support of the claim. For further information, call Tony Francis or Nicholas Gould on 0207 956 9354