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- The Technology and Construction List of the Supreme Court of NSW (T&C List) has an excellent practice note governing its operation and we are certainly not seeking to pass judgment on that. Although it has occurred to us if, perhaps for certain matters, an earlier exchange of “key” or “pillar” documents ought to be encouraged.
- Presently, in the T&C List, discovery (exchange of documents relevant to a fact in dispute), only occurs after the exchange of evidence. That is, only once the parties have committed substantial resources to preparing an originating process (summons) and List Statement. We do like the present form of discovery (in terms of requests for documents rather than swathes of documents being issued to the opposing parties).
- However there are plenty of matters in the T&C which relate to the delay of a construction project. Inevitably, claims related to delay are going to need to address the reasons for the delay – the causation element. Then there will need to be an assessment of costs. Often, documents which are critical to identifying the reasons for the delay – the true reasons for the delay – are not exchanged with the opposing party until after evidence. After a significant amount of money and time has already been incurred. Of course the party seeking such documents can apply for early discovery, but this is a hassle. Wouldn’t it be better if the Court acknowledged that there are certain documents – “pillar documents” – on certain matters, which justify the early exchange of documents.
- On matters involving delay and disruption, we’d suggest the following documents be exchanged:
- all programme updates – internal
- monthly project reports – these will presumably elucidate true reasons for delays, regardless of what is recorded in a programme (ie there may be other reasons for delay which are being internally reported but not externally disclosed during delivery)
- monthly design reports – if applicable (usually on larger projects)
- internal cost controller records – the “forecast file” – let’s see what costs were actually accounted for in the project so we can truly assess the loss caused by any delay events.
- Such documents could be provided early on in litigation or even as a requirement to the first directions hearing. There could be a standing position of such documents are discoverable, and that by exception, objections will be heard as to why such documents should not be disclosed.
- Some parties will complain that there is too much of an administrative and cost burden, early on in the proceeding, which should count against the need to disclose such documents. This is in reality a nonsense. Sophisticated projects are usually well structured and ordered. Sometimes documents can be stored in different locations on a SharePoint, but usually it is quite simply to pull out of a digital folder all programmes used, or all reports, or all versions of the forecast file. Even if not all documents are captured, obtaining a decent percentage of files is likely to be quick and easy.
- It is also very simple if the right lawyers are looking for what they know is very likely to exist. The problem with large scale discovery is that often the lawyers looking for documents don’t quite know what they should be expecting to see. Plus the nature of the discovery software (Nuix/Relativity etc), can in some instances jumble the order of documents extracted from a SharePoint. Or if not jumble, at least make the document organisation structure more difficult to track.
- Not all matters will be “qualifying matters”. But for those matters which are, we see real advantages to early exchange of “pillar documents”. It would allow all parties to appraise themselves early on in the proceeding of the real issues which plagued the project. That is helpful information in commercial discussions, plus useful to the briefing of experts and for framing any subsequent requests for discovery.
