The judge who refused to grope in the dark

Every commercial argument I've ever watched eventually boils down to the same question: what actually happened out there and who can prove it? The best answer ever given in this industry came from a High Court judge in Belfast who by the sound of it was losing his patience at the time.

The job itself was nothing special. A public body had a consultant working for them under an NEC3 contract doing asbestos surveys and at a meeting one January the client told them to sample far more extensively than the guidance actually required. More work, plainly instructed and everyone in the room knew it. The argument about what that extra work should cost turned up a long while after the work was finished, which is generally when these arguments do turn up, once the goodwill has been spent and the account is being settled.

Now NEC has a tidy theory about how you value a change like this. You price it as a forecast, ahead of the work, at the time. Sensible enough in principle. The trouble was that by the time this one reached a courtroom the work had been done for years. The timesheets existed. The costs were known and written down. And one side was still arguing that the money should be decided on a forecast, which at that point is essentially a guess about a past that had already happened and been recorded.

Mr Justice Deeny wasn't having any of it and his words are worth keeping somewhere you'll see them. "Why should I shut my eyes and grope in the dark when the material is available to show what work they actually did and how much it cost them?" The court decided the assessment ought to be informed by the best information available as to what the work actually cost and how long it actually took. In plain terms, when the facts exist, the facts win.

What that means on site is worth more than most of what's in your contract file. When the disagreement lands, which it eventually does on any job worth having, the money doesn't go to whoever argues hardest across the table. It goes to whichever side is holding the record of what actually happened. If that's you, if your side has the daily record of who was on, what they did, what stood waiting and why, then the assessment turns into arithmetic and arithmetic is a miserable thing to argue with. If it isn't you, then the other side's version of events becomes the best information available and you're the one groping in the dark in a room where the other lot thought to bring a torch.

The notices and the time bars still matter enormously, that's a piece for another week, but when it's the amount being decided this is the case to remember. Courts don't want theory when facts are on the table. So the day's record isn't just site paperwork, whatever it feels like at half four on a wet Thursday. According to the High Court it's the raw material of the cost and time assessment itself.

So this week, whatever else happens on your site, the day gets written down on the day. Labour, plant, what stopped and why. It takes minutes and a judge has already told you what it's worth.

Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd [2017] NIQB 43. A Northern Irish decision, persuasive rather than binding in England and Wales, where it has been quoted in NEC arguments ever since.