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Note to self

Analysis Wembley lessons

Engineers' personal emails and notes are being scrutinised by lawyers in the Wembley High Court case.

What would your site diary reveal in court? Ruby Kitching reports.

With the battle between Wembley Stadium contractor Multiplex and steel subcontractor Cleveland Bridge (CBUK) raging over what went wrong on the job, court 7 of the Technology & Construction court is seeing a thorough, daily airing of dirty linen from the pair of them.

It is a harrowing time for all involved as the linen in this case takes the form of internal emails, personal notebooks and site diaries. Even doodles and the vaguest scribbles are being scrutinised for deeper meanings by eagle-eyed lawyers.

An asterisk here and a tick there on the notes from a meeting could make the distinction between an important task and a trivial one, or show whether an issue has been resolved or not.

But would any of the engineers currently being cross examined in the witness box have envisaged that their personal notes would reveal so much? Definitely not, say the lawyers contacted by NCE.

'Engineers don't tend to think about how their words will be looked upon in a sneering way in court, ' says Kennedys lawyer Jonathan Raynes.

Another leading construction lawyer, who wished to remain anonymous adds that engineers are often unaware that every piece of relevant evidence has to be disclosed in a High Court case - including voicemail messages on mobile phones and information on memory sticks.

'There is also no such thing as internal, informal or confidential in court - it all has to be disclosed, ' she says.

But before you all start scrutinising your old notes, there are a few things to consider.

First, the Wembley case is quite exceptional as the case put forward by each barrister is aimed at trying to prove that the other company was conspiring against each other - either to oust the other firm, or to force it to cough up more money. This is why notes and emails are being so closely inspected.

Second, most disputes end up being resolved at adjudication, and it is only the really complicated cases with tens of millions of pounds at stake that end up in the High Court.

And in some cases, destroying notes can cause more trouble.

'The worst thing is when a completely innocent document goes 'missing'. The judge will presume the worst. As a lawyer, I'd much rather be prepared for the most damning piece of evidence, ' adds the unnamed lawyer.

Take Multiplex UK construction director Matt Stagg's email to project director Ashley Muldoon on 5 May 2004, which says, 'plan b. cbuk xed and fuck them later?'

In the context of previous emails sent between Stagg and Muldoon over the escalating cost of the steelwork contract, CBUK's barrister Hugh Tomlinson QC used the evidence to suggest that this emotional response demonstrated that Multiplex had a strategy to revalue CBUK's contract at that stage and launch claims against CBUK later. During cross examination in the High Court on 2 May, Stagg said: 'there was a Plan A and a Plan B and both plans had to be developed'.

Tomlinson also scrutinised Stagg's earlier notes to back CBUK's case that Multiplex had been hatching the 'Armageddon Plan' to oust it from the project as early as April 2004 (see above).

CBUK eventually left the site in August after being served a notice from Multiplex.

Personal notes and internal emails from Multiplex project manager Ran McGregor have also been hotly debated in the courtroom.

CBUK was only given its notice to leave site on 16 July 2004.

NCE spoke to a senior engineer from one major contractor who said he had learned the hard way how it felt to have a lawyer forensically examine personal notes. He now advises people he works with to be more cautious about the way they keep their notes.

'Just stick to the facts, ' he says. 'Don't put any emotion into what you write. If you do, it'll come back to bite you.

'What seems perfectly reasonable [at the time] gets coloured in a completely different way [in court].'

However, he added there was no policy within his company to offer training to ensure glaring slip ups were not made. He conceded, 'if everyone behaved professionally and worked together, you'd stay out of court'.

The Wembley case has also highlighted the fact that some engineers do not make notes at meetings, while others destroy them immediately afterwards.

Multiplex's barrister Roger Stewart QC highlighted that CBUK's current managing director Brian Rogan did not keep any meeting notes and sent only 16 emails over two years.

'Your witness statement is 43 pages long. You've given quite detailed accounts of 47 meetings or telephone conversations, none of which you have a single note or internal record for. How do you recall them?' inquired Stewart.

'From memory and looking at documents, ' replied Rogan.

This can be a dangerous game, says the construction lawyer.

'If you do everything by recollection then it affects the credibility of what you're saying.'

She adds that personal notes made by the lowest ranking engineer at a meeting can carry more weight in some cases than a senior manager's recollection two year's later.

'A judge puts a lot of weight on contemporaneous notes, more perhaps than minutes of a meeting neatly written up a few weeks after the event.'

One project director with experience of major stadium contracts shared Rogan's experience.

'I tend to action things straight away and then draft a letter to formalise any agreements, ' the director says, adding that he never used email, as he felt it was too informal a means of communication.

'People just don't put as much thought into emails. I recently had to speak to a senior member of staff for sending a rather sniping email to a sub contractor, ' he adds.

Emails are often red off in the heat of the moment, he adds, revealing sometimes more than the engineer intended.

But some of the most damming evidence can be the most well-meaning.

Raynes says that companies often produce internal reports at the end of a project detailing what worked and what went wrong.

'These so-called 'condential', internal documents are just what the other side make a beeline for, ' he says.

Top 10 communications tips

1. Say it over the phone if you can, rather than writing it down.

2. Only state the facts in your notes; don't give your own opinion.

3. If the project could enter litigation, don't destroy anything relevant.

4. Only write it if you would be happy to hear it read out in court.

5. Avoid creating unnecessary records.

6. Always check who is being copied into an email.

7. Keep some record of anything significant, particularly agreements, as things get easily forgotten two years later.

8. Keeping notes is better than not keeping notes as they form more credible evidence.

9. Be careful of criticising your own organisation. It could be an excellent learning exercise; it could also be used as evidence against you.

10. If you disagree with the content of a letter sent to you, write back immediately.

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