What evidence do I need to defend my building and construction dispute?

Building and construction disputes can be stressful, and one of the problems is knowing where to start.  Evidence is about proving what happened and provides you with the opportunity to demonstrate that an agreement was made on a certain date or the works are defective.  Understanding what constitutes as evidence and how much you need is a crucial part of the dispute resolution process.  Andrew Cullyer, Litigation Executive, reviews the evidence you will need to gather to navigate your way through your dispute.

Burden of proof in building and construction disputes

The burden of proof relates to which party must prove what. In simple terms the rule of thumb is “they who assert must prove”. This means if you are claiming a sum of money you must prove you are entitled to it; if you are claiming a deduction or set off to a sum owed you must prove you are entitled to that deduction or set off.

Assessing what you have to prove is an iterative process as an over-arching assertion such as “I am entitled to X” may be underpinned by several other assertions such as:

• The contract says Y;
• They did Z;
• Z was a breach of the contract; and
• Z caused me a loss of X.

In this example X, Y and Z are all assertions requiring evidence in order to prove them.

Standard of proof in building and construction disputes

The standard of proof is to what level you must prove your assertions.  As construction/building disputes are civil matters, the standard is “on the balance of probabilities” or “more likely than not”. You must therefore show that something had a 51% likelihood of being correct or greater. This is, in reality, a fairly low bar.

There is however a caveat to this; extraordinary claims require extraordinary proof.  That is to say the less likely a sequence of events seem the more proof you will require to show it, even on the balance of probabilities. It also follows that the greater the sum of money claimed, generally, the more proof is required to substantiate it.

Types of evidence in building and construction disputes

Evidence can mean many things, including, but not limited to:

• Documents
• ​Accounts
• Emails
• Whatsapp messages
• Witness evidence

The importance of record keeping can not be underestimated in any construction project. If you wish to record something, or if something important occurs get it in writing, preferably dated and signed, and make sure everyone is aware of that written record.  The intricacies of digital video and audio recordings as evidence are beyond the scope of this article as they lead to additional data protection and privacy concerns.  In simple terms, we would always recommend you obtain permission for any such recordings before they are made.

Categories of evidence in building and construction disputes

As far as the law is concerned evidence generally falls into two categories:

1. Evidence of fact - This is evidence that shows what occurred or what the current state of affairs is. A photograph showing the defective works or an email showing what was agreed would suffice. 99% of all the evidence you require will be evidence of fact; it will be about demonstrating what happened and when.
2. Opinion Evidence - This is evidence that the Court does not generally consider. The Court considers itself more than capable of forming its own opinion without the assistance of others. There is, of course, a significant exception to this and that is in respect of expert evidence.

Expert evidence is opinion evidence that is permitted where the Court considers it requires the assistance of an expert on a particular subject. The fundamental requirements are that  the person be an expert i.e. have the skills and experience necessary to form an opinion upon which the Court can rely, what is being asserted requires expert evidence and that the expert is impartial.

There are therefore strict procedural requirements in respect of expert evidence.

In summary, and for example, if you wish to claim the work carried out for you is defective you should:

• Provide evidence of what the contract says
• Provide evidence of fact to show the work is defective or in breach of the contract;
• Consider whether expert evidence is required; and
• Provide evidence of the cost of remedial works.

What is important to understand is a document written at the time of any given event will likely be given greater consideration (or weight) by a Court or tribunal than someone’s recollection of events many months or years later.

This is why keeping good records is a fundamental part of the basics. Those good records become the evidence that you need later on.

To have your questions answered on your construction project or if you wish to bring a claim against a party involved in your construction project, you can contact Andrew Cullyer today on 023 8071 7482 or email andrewcullyer@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.