A typical scenario relating to problems with minutes is a claim by a contractor for loss and expense and/or an extension of time. It is intriguing to discover that while all correspondence and individual recollections connected to a project make it perfectly clear that there was no chance whatsoever the roof would be on by a certain date, the site meeting appears to have taken place in a complete vacuum, as all those around the table declared without reservation that the roof would be completed that day, if not sooner! As you can imagine, if a dispute arises, explaining away such contradictions is not easy.
Pre-contract minutes
It is quite common for meetings to take place post-tender but pre-contract, with the purpose of agreeing issues between the potential parties that, in the view of the employer at least, remain outstanding. These minutes can be critical where the contract documents are not subsequently finalised. I can think of one instance where minutes recorded the contractor's structural engineering details. But the contractor had no apparent design responsibility. So imagine the contractor's surprise some 12 months down the line when it was successfully argued that as a result of the minutes and their subsequent incorporation into contract correspondence the contractor had taken on a design responsibility for which it was both liable and potentially uninsured.
There is unlimited scope for the incorporation of documents by accident. This is yet another reason to read the tender documentation and tender package carefully. Statements made and recorded in the enthusiasm of a pre-contract meeting – that the contractor could not see how the job could possibly overrun and or come in above price, for example – should not be incorporated into the body of the contract document and left to simmer until needed by the employer.
The nature of a meeting
Meetings take many forms. Some take place informally during a walk around the site or, when negotiations are involved, will be on a without-prejudice basis so that nothing will be recorded should the matter become a subject of dispute in the future. It is important to establish at an early stage, particularly in relation to one-off meetings, who will be in attendance and to determine the status of the meeting. If minutes are to be taken, make sure who is taking them and whether such minutes are to be without-prejudice records.
It is important to establish at an early stage, particularly in relation to one-off meetings, who will be in attendance and to determine the status of the meeting
It is sensible to be aware of likely topics for discussion at the next meeting. While regular site meetings should in many cases determine what will be discussed, it is clearly sensible to have some kind of agenda for a one-off meeting. Otherwise the whole exercise could be a complete waste of time and may exacerbate disputes.
This brings me back to my introductory paragraphs. In the enthusiasm to impress upon those present that things are going well, particularly if senior personnel attend these meetings and are not involved in the day-to-day running of the project, there is a clear tendency to exaggerate the success of a project. If the job is overrunning, careful thought needs to be given as to how this will be indicated within a meeting. A conflict of evidence is not helpful in such cases.
Saying nothing
This is the opposite of promising the earth but in itself may cause problems. If all present set a revised programme for the completion of the works which you know to be impossible, saying nothing in itself may eventually cause difficulties.
This is perhaps the most common area of complaint when, 18 months after the event, an individual present at the meeting reads the minutes and declares that he or she never said that, and indeed said the opposite. It is natural for writers of minutes to slant an interpretation of the discussions in the favour of the party they represent. While I appreciate that it is not the most interesting of exercises it is strongly my view that minutes should be read immediately upon receipt and questions asked should the minutes not arrive soon after the meeting.
Source
Construction Manager
