BUILT ENVIRONMENT JOURNAL

Third party documentation

Comment: It is important not to be seen as fence-sitting in cases where the client wants and needs some clear advice

Author: Jeffrey Tribich

01 June 2020

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In construction legal cases over the years, I have reviewed documents put forward by parties in support of their representations. A common feature I have seen is informally scribbled annotation that, clearly, the writers did not envisage would be disclosed in future legal proceedings: some of these comments contradicted the claims and undermined the very cases that the litigants were trying to prove.

With fewer paper documents and increased digital working, this sort of error may not be so frequent now. However there are still situations – although not always in an identical context – where you should think carefully about whether and how to comment on documents.

Approving documents

A case in point is where you as a surveyor have been asked to comment on or approve documents. The implications of approving documents may not be fully understood, especially by less-experienced professionals. As a general rule you should avoid such approvals, as these may make you liable where liability would otherwise remain solely with the authors of the documents.

Furthermore, documents produced by others may simply not cover aspects of work with which you are contracted to deal. In such cases you would need to restrict comments to matters that affect or impinge on your input and areas of work.

Competence

There is also the question of whether you have the competence to comment on the particular subject matter. The default position should be to avoid commenting or approving unless there is a clear reason to do so. At the same time, it is important not to be seen as fence-sitting in cases where the client wants and needs some clear advice: not commenting could, first, be seen as unhelpful and, second, be in breach of a contractual obligation to use reasonable skill and care if there is something that warrants comment. There will be circumstances in which you need to highlight matters that require review or development whether or not you are instructed specifically and explicitly to do so, as this is in the client's interest.

It is important to keep the following in mind.

  • If your instructions require you to comment on or approve documents then do so, using reasonable skill and care, but only when it is within your capability. If necessary, consult with colleagues and try to reach a collective view.
  • Do not be casual with wording: do not 'approve' a document unless a client's instructions require you specifically to do so.
  • When you comment on a document, keep the comment as brief and to the point as possible, and try to avoid giving specific instructions on what to change. Limit comments to, for example, pointing out where the document falls short of complying with guidance, legislation or a contract.
  • Once the document has been reviewed, developed further and reissued to you, you should comment again as necessary. Revised documents may not take account of some of your initial comments and you should not be shy about repeating them. When you have no further comments – and this may involve a number of iterations – you can explicitly state: 'No further comment'.
  • A good general approach is to provide advice where you can and not to hide behind professional indemnity insurance restrictions if at all possible, but at the same time not to ignore such restrictions. Ensure that you bring a positive attitude to your instructions, and think carefully about wording and express meanings accurately – these are good general principles in any professional dealings.

Of course, this is general guidance in relation to all professional services, and any particular approach or response will need to be service-specific.

To conclude, be clear about what you are doing and why, and keep in mind at all times the possibility that you could be called on to justify your comments in a court of law.

Thanks are due to Alex Brown, partner at Hollis, for contributions and comment for this article.

jeffrey.tribich@gmail.com

Related competencies include: Client care, Inspection

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