Construction dispute resolution is arguably starting to benefit from improvements to information management through CDEs.
Historically, lawyers and claims consultants would be issued bankers boxes of paper-based evidence. Older colleagues describe how significant time could be spent attempting to find and sort information in an ocean of printed documents.
Analysing drawings or contracts to understand changes between document revisions was labour intensive. This had an impact on the time and cost of analysing documents and the quality of the resulting claims. Not to mention the paper cuts!
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What has changed?
CDE solutions have transformed how we store, share, and manage information in built environment projects. During a project, a CDE can help parties manage information and work efficiently. A 2021 report suggested that using one could result in £5.10-£6 of direct labour productivity gains for every £1 invested in information management.
However, the benefits do not end there. CDEs can also improve construction dispute resolution.
Access to a project’s CDE can make finding and comparing relevant information in disputes quicker and easier. This can save time and money, not to mention the added benefit of improving the quality of claim analysis.
u003cstrongu003e“Withdrawing access to the CDE is a tactic used to impede a party’s ability to write claims efficiently. It can prevent a party from accessing the evidence required to substantiate claims.”u003c/strongu003e
Sarah Keyte
When discussing this point, Trant Engineering Ltd v. Mott MacDonald Ltd [2017] EWHC 2061 (TCC) often arises. In this dispute, access to the CDE solution was withdrawn following a payment dispute.
When relationships break down, the party that controls the CDE solution may gatekeep evidence to the detriment of the party whose access has been withdrawn. In my experience, withdrawing access to the CDE is a tactic used to impede a party’s ability to write claims efficiently. As a strategy, it can prevent a party from accessing the evidence required to substantiate claims.
Speaking at the IM4Legal event and to attendees after, it appears this tactic is not an uncommon practice. To make matters worse, contracts may not specify what should happen to the CDE in the event of a dispute or termination.
What can you do to avoid this issue?
When drafting contracts, parties may wish to include provisions expressly dealing with CDE access in the event of a dispute.
Clause 5.5 of the ISO 19650 protocol notes that the “… appointor shall arrange for the Appointee to have reasonable access to the information in the CDE Solution and Workflow … insofar as necessary to perform its obligations”.
While it is clearly sensible to deal with access to the CDE in such circumstances, it is also prudent for each party to keep their own records in any event, especially at key design or contractual milestones.
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Sarah Keyte is an associate technical director for HKA Global, a leading global consultancy in risk mitigation and commercial dispute resolution. She is an ambassador for nima and a member of IM4Legal.
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