How is technology affecting construction disputes?
Technology is affecting the way claims are made and dealt with in many different ways. It is making it easier not only to find out relevant information but also to present it to those who need it, whether that be lawyers, experts, commercial decision makers, or adjudicators/judges.
Collecting and managing documents
E-disclosure, - the process of collecting electronic documents, processing and e-duplicating them, searching them with keywords to create a set for review, and reviewing and tagging them for issues and for disclosure in dispute proceedings – is nothing new. However, it has not always been cost effective on smaller disputes and nor has it been mandatory.
The Disclosure Pilot Scheme in the Business and Property Courts (including the Technology & Construction Court), however, seeks to bring about a complete culture change to the approach to disclosure in civil litigation (and, consequently, disputes in general). The Pilot Scheme is mandatory (with some limited exceptions) and imposes more stringent rules on how parties must deal with disclosure. In particular, there is an obligation to “promote the reliable, efficient and cost-effective conduct of disclosure, including through the use of technology”.
Where a search-based model of disclosure is ordered, the parties must seek to agree - and the court will give directions – on the use of various technological tools. These may include:
email threading (to reduce instances of emails which appear within longer threads)
concept clustering analysis (to identify themes within a document set and understand the kinds of documents you are looking at)
machine learning in the form of predictive coding (whereby an algorithm assigns tags to documents based on tags applied to a sample set) or in the form of technology assisted review more generally, for example where the algorithm prioritises the review queue based on the documents it thinks are most relevant, meaning that when the reviewers have seen all document the system thinks are at least, say, 20% likely to be relevant, a sample of the remainder (Which may be a large number of documents) can be checked and then a decision taken that they do not need to be reviewed, saving time and costs.
Identifying design changes
Following BIM (building information modelling) processes means that there will be a record of all the design changes made on a project. With fully collaborative BIM it should be possible to see what was changed, when, and by whom. This can assist in pinpointing the relevant moment or decision which needs to be considered and potentially investigated further.
There is also software which can take in digital 2D designs and produce comparisons between them highlighting where things have changed – for example, where a wall has been moved, or where a door or window has changed. This removes the need for time-consuming manual comparison to check whether or not designs are duplicates (and so the same) and, if not, to identify what has actually been changed in each new iteration.
Establishing delays
4D BIM can use existing records to model the as-built project progress over time, allowing experts, lawyers, and decision makers to quickly and easily see what happened when and how different elements of the work were impacted by events.
Identifying defects in the works
Traditionally, establishing the status of works which were covered up or integrated meant disruptive and costly opening up of the works, and consequential remedial works (which had to be paid for regardless of what was discovered). Now, there are a number of non-invasive routes to survey an existing structure:
Smart systems/internet of things – Many buildings are now equipped with numerous sensors which track performance. The output data from these can be used to help assess a building’s performance and identify problem areas or systems which are not functioning as they were intended to. However, the cause for that (which may simply be user preferences, with occupants changing the settings!) will still need to be established.
Laser scanning – Modern 3D laser scanners can capture data points across large areas with an accuracy of +/- 3mm and at speeds of up to millions of points per second. Smaller scanners can also be mounted on poles and inserted through access points (such as ceiling tiles) into roof voids to capture roof-mounted M&E installations with minimal disruption to occupants.
Thermal imaging – Thermal imaging can identify hot and cold spots, allowing you to assess a building’s thermal efficiency. This can be done for whole buildings, including hard to reach roofs, by drone surveys. Inside, floor surveys can identify hot and cold spots in underfloor heating (and reports can be automatically generated flagging problems areas), or produce plans of the as-installed pipe work which can be compared to the design drawings.
To speak to Hannah: hmycockoverell@clarkslegal.com