Contemporaneous records: the evidence that decides whether your claim survives

Short answer: Contemporaneous records are original documents created at or about the time of the event they describe — site diaries, timesheets, progress photographs, dated instructions, programme updates. Under FIDIC and most construction contracts they are what substantiates a claim. Where there is no contemporaneous record to support a claim, the claim fails, and a witness statement written later cannot fill the gap.

That last point is not a rule of thumb. It is the operative holding of a decided case, and it is the reason a well-founded claim can still be worth nothing. Notice keeps the claim alive; records are what turn it into money.

What are contemporaneous records?

A contemporaneous record has to be two things at once: a record, and contemporaneous.

A record means an original or primary document — one that either gives effect to a transaction or captures information supplied by someone with direct knowledge of the facts. Timesheets, delivery notes, plant returns, daily site reports, signed inspection sheets, dated correspondence, meeting minutes, marked-up drawings, photographs with reliable metadata, and native-format programme files all qualify. A narrative written for a claim submission, or a witness statement prepared for arbitration, does not.

Contemporaneous means the record was made close enough in time to the event that it can be trusted. There is no fixed window, but the courts treat the nexus between event and recording as a question of fact and are sceptical of a distance measured in months. FIDIC's 2017 forms give a definition worth memorising: contemporary records are "records that are prepared or generated at the same time, or immediately after, the event or circumstance giving rise to the Claim."

The practical test is simple. If the document existed before anyone decided to make a claim, it is a record. If it was created because of the claim, it is argument.

The case that settled it: no record, no claim

The leading authority on what "contemporary records" means in a FIDIC contract is Attorney General for the Falkland Islands v Gordon Forbes Construction (Falklands) Ltd (No 2) (2003) 6 BLR 280, a decision of the Falkland Islands Supreme Court on a preliminary point of law referred from an arbitration under section 45 of the Arbitration Act 1996. The contract was the FIDIC Conditions of Contract for Works of Civil Engineering Construction, 4th Edition, and the dispute concerned Clause 53 — the predecessor of today's Clause 20 claims machinery.

The contractor wanted to use witness statements prepared for the arbitration to cover the parts of its claim where records were thin. Sanders, Acting Judge, held that it could not, and set out five propositions that have been quoted ever since:

1. "Contemporary records" means original or primary documents, or copies of them, produced or prepared at or about the time giving rise to the claim, whether by or for the contractor or the employer.
2. It does not mean witness statements produced after that time.
3. Where there is no contemporary record to support a claim, that claim fails.
4. Where records support part of a claim but not all of it, the claim may succeed on the supported part — and on the unsupported part only if proper inferences can be drawn from the records that exist, to the civil standard of proof.
5. Witness statements may be used only to identify or clarify existing records. A witness statement cannot supplement, or be a substitute for, incomplete records.

Two lines of reasoning underpin that. The judge borrowed Bingham J's definition of a record from H v Schering Chemicals [1983] 1 WLR 143 — documents a historian would treat as original or primary sources. And he was blunt about the commercial logic: a contractor who fails to keep records puts the employer in a position where it can no longer investigate the facts, and "cannot put himself in a better position by so doing."

That is the point most teams underestimate. The prejudice runs to the other side, and the tribunal will not correct it for you.

What FIDIC requires

Under the 1999 Red Book, Sub-Clause 20.1 requires the contractor, having given its 28-day notice, to keep such contemporary records as may be necessary to substantiate the claim. The Engineer may inspect them and may instruct further records to be kept.

The 2017 Red Book moved the obligation to Sub-Clause 20.2.3 and tightened it in three ways, as Thomas Young of Fenwick Elliott sets out in his analysis of the revised Clause 20. First, it defines contemporary records for the first time. Second, it makes explicit that the Engineer monitoring, inspecting or instructing records does not imply acceptance of their accuracy or completeness — so do not read an Engineer's silence as agreement. Third, and most usefully, it defines what a "fully detailed Claim" contains, and item (c) is "all contemporary records on which the claiming Party relies."

Note the structure. The 28-day Notice of Claim under Sub-Clause 20.2.1 is the condition precedent; miss it and the other party is discharged from liability. Keeping records is not itself a condition precedent to entitlement — but the fully detailed Claim due within 84 days has to be built out of them. In other words, the notice preserves the right and the records determine its value. A claim that survives the time-bar and then fails on evidence has cost you exactly as much as one that was never notified. See our note on the 28-day time-bar for how the first half of that sequence works.

What NEC4 requires

NEC4 approaches the same problem from the cost side rather than the evidential side, and the records burden is easy to miss because the contract never lectures you about it.

Compensation events under the NEC4 Engineering and Construction Contract are assessed on Defined Cost, which — depending on the dividing date — is either actual or forecast Defined Cost. Clause 63.1 requires an assessment of the effect of the event on Defined Cost. As NEC Contracts (a division of Thomas Telford Ltd, the commercial arm of the Institution of Civil Engineers) illustrates in its published worked example, that means establishing the Defined Cost of the work both before and after the change, not the difference between a tendered price and a forecast. Get that wrong and the assessment is wrong, regardless of who was at fault.

The records implication is significant and often overlooked: you need contemporaneous cost and resource data for the work as originally planned, not only for the work as changed. And because an implemented compensation event cannot be reopened, a thin assessment made on thin records is final. NEC's answer to this is the same as FIDIC's in substance — the discipline just sits in the programme and cost accounts rather than in a records clause. Our FIDIC notice versus NEC4 early warning comparison covers how the two notification regimes differ.

The six categories the SCL Protocol asks for

The Society of Construction Law's Delay and Disruption Protocol, 2nd edition (February 2017) makes records its very first Core Principle, ahead of everything about delay analysis. The principle reads: contracting parties should reach a clear agreement on the type of records to be kept, and allocate the necessary resources to meet that agreement.

Appendix B divides project records into six categories:

• Programme — the baseline and Accepted Programme, updates, revised and look-ahead programmes, and the narratives that explain them
• Progress — as-built data, on and off site, covering all activities affecting completion
• Resource — labour, plant, equipment, materials, subcontractors, and their output and productivity rates
• Costs — detailed enough that costs can be linked to delay or disruption events
• Correspondence and administration — instructions, notices, minutes, requests for information
• Contract and tender documents — the contract as executed, including amendments

Four of the Protocol's practical rules are worth lifting straight into a project procedure. Records must be generated as the works progress, "and not afterwards." Progress, resource and cost records should state facts only and offer no opinions, and should be signed by authorised representatives of both parties where practicable. Data should be recorded so it can be matched to activities in the Accepted Programme — records that cannot be tied to a programme activity prove much less than they appear to. And records should be kept in searchable electronic form, in a document management system, with programmes, spreadsheets and emails retained in their native formats, for at least as long as the contract or the limitation period requires.

The Protocol also points out something employers routinely neglect: it is usually worth the employer keeping its own independent set of records, both as a check on the contractor's and to support any claim it may bring itself.

Where record-keeping actually fails

It is rarely a decision. It is drift.

The commonest pattern is that records exist but cannot be connected to anything. Daily reports are filed, but not coded to programme activities, so nobody can show which activity was disrupted or by how much. The second pattern is inconsistency: the site diary, the labour allocation sheet and the monthly report each say something slightly different about the same week, and the differences were never reconciled or annotated at the time. The third is format — records held as scanned images or in a system nobody can export from, which turns a two-week analysis into a two-month one and quietly reduces what the claim is worth. The fourth is scope creep in the record-keeping regime itself: circumstances change, nobody revisits what should be recorded, and a new category of exposure goes undocumented for months.

None of these look like failures at the time. They look like a busy project. They surface eighteen months later, when someone tries to prove causation and finds the evidence is a story rather than a record. This is also why the choice of delay analysis method is so often made for you: the method you can run is the method your records will support.

What this means on your project

The working discipline is short. Agree the record-keeping regime in writing before work starts, and price it — the Protocol notes that record keeping imposed after contract award can itself amount to a variation. Code progress, resource and cost records to Accepted Programme activities from day one. Keep facts and opinion apart. Get records countersigned where you reasonably can. Reconcile inconsistencies while people still remember. And revisit the regime when the job changes shape.

Above all, treat the notice and the record as two halves of one obligation. The notice is a date you can diarise. The record is a habit that has to hold for the length of the job, on every shift, under pressure — which is exactly why it is the half that fails.

This is where a contract-aware reasoning layer earns its place. Aven-AI reads the contract, including bespoke amendments to the claims and records provisions, and works out what each clause actually obliges you to record and by when. It maps notice windows and time-bars, warns the responsible person before a deadline lapses, and flags where a live claim is running without the substantiation its own contract demands. It cites every point back to the clause and drafts what is needed; the human reviews, decides and serves. It does not send anything on your behalf. The aim is that when the claim is finally tested, the argument is about the merits — never about a record nobody made.

This article is general information, not legal advice. It cites its sources so you can verify each point; take advice on your specific contract and facts.

Sources & further reading

• Society of Construction Law, Delay and Disruption Protocol, 2nd edition (February 2017) — Core Principle 1 (Programme and records), guidance paragraphs 1.1–1.27 and Appendix B on the six record categories.
• Attorney General for the Falkland Islands v Gordon Forbes Construction (Falklands) Ltd (No 2) (2003) 6 BLR 280 — the meaning of "contemporary records" under FIDIC. Full transcript (NADR) and case note (Keating Chambers).
• Thomas Young, Fenwick Elliott, "Changes to the Claims provisions in the 2017 FIDIC Red Book" — Sub-Clause 20.2.3, the definition of contemporary records, and the 28-day and 84-day obligations.
• NEC Contracts, "NEC4 ECC compensation event assessment — a worked example" — Defined Cost, the dividing date, and clause 63.1 assessment.
• H v Schering Chemicals [1983] 1 WLR 143 — Bingham J's definition of a "record" as an original or primary source, applied in the Falkland Islands case.