Are affidavits acceptable as contemporaneous records?

The Falkland Island vs Gordon Forbes Limited case, which took place on 13 March 2003, is a case that highlights the vital importance of contemporary, accurate record-keeping.

In the case, a dispute arose between the parties which was referred to arbitration. During the course of the arbitration, Falkland Island sought a ruling from the arbitrator that witness statements should not be introduced into evidence by Forms “to fill gaps” for those areas where contemporary evidence might be missing.

They argued that if the issue remained outstanding they would have to incur the considerable expense of preparing witness statements in rebuttal not knowing if the arbitrator would allow Forbes’ statements.

The arbitrator refused to give a ruling on the issue and Falkland Island subsequently obtained permission to make an application for determination of the following preliminary point of lay under section 45 of the Arbitration Act of 1996.

What we can learn from this case:

Contemporary records means records produced or prepared at the time of the event giving rise to the claim. It does not mean witness statements produced after the event. Where there are no records, the claim fails.

  1. All forms of contract require that records are kept
    There are many different types of records, such as QA/QC; Process Control; Weather; Working Hours of Plant and Labour; Idle time; Down Time; etc. Generally in claims circumstances, records are needed to prove both extensions of time and additional monies.
  2. Daily diaries and events logs are necessary
    The Employers Agent and each of his Site supervision staff are to keep daily diaries of the Contractor’s and their own activities.The Agent is to keep a running Events Log, chronologically recording significant events. Such an Events Log will be invaluable as a readily available reference, when writing progress reports and reviewing the Contractor’s claims.

Minutes of progress meetings must be kept
It is imperative that minutes of all progress meetings, cost meetings and technical meetings are kept. No matter who takes the minutes – he or she should ensure that the minutes are made available to all affected parties within a short space of time.

It is of no value to hand out minutes of a previous meeting at a subsequent meeting and this practice should be frowned upon. Although minutes of meetings do not constitute notice, they can be used as persuasive evidence in the event of a claim.

“The parties to an arbitration will learn (often too late) three lessons… The importance of records, the importance of records and the importance of records!” said Max Abrahams.