3-29 Can relying on e-mails as your main mode of communication be damaging to your chances of winning a contractual dispute? :: The Construction Management Pro

3-29 Can relying on e-mails as your main mode of communication be damaging to your chances of winning a contractual dispute?

The first question is, are e-mails admissible as evidence in litigation/courts? They may not be unless the e-mails are authenticated in accordance to the electronic act i.e. by electronic signature.

Can you imagine a situation where you are going to show that the employer agreed by e-mail on something and you were just going to produce that e-mail as evidence when his lawyer object with a statement that e-mails are not admissible as evidence.

Assuming you did not follow up that e-mail with any written back-up, you may have nothing to back up your assertion that the employer agreed. So for all of you out there who assume that e-mails are good proof in case things goes wrong. Please think again and check with your legal counsel. Do not wait to find out only when things goes wrong, because by then it might be too late.

The notice clause of most contracts are boiler plate and are often antiquated (still mentioning fax or certified mail) and never get updated. If e-mail is a noted in as a means of notice under the contract it may not be admissible.

How do you avoid this potential problem? There are several procedures you could adopt. I usually start the process with the phone, proceed to e-mail for confirmation and, follow that with a formal letter.

Letters work best. If a contractor agrees via e-mail, send a letter back with the e-mail in the envelope as confirmation of the agreed to subject. You can further verify delivery by getting a return receipt showing signature of the addressee.

Electronic versions of documents can be corrected (altered) leaving no evidence of correction and therefore found not accepted as a proof. Emails with electronic signatures, scanned copy of signed original letters in .pdf format may add to the perception of authenticity. Periodic exchange of correspondence log – with reference number and subject of correspondence could be additional confirmation for exchange of correspondence – by this way any dispute over exchange of information could be cleared on a regular basis leaving no serious lapses when you need evidences.

The bottom line is communicate with the other party and agree on what counts and what does not count as acceptable means of notice. What is written in the contract .. counts.

To aid in understanding the flow of a project, a document control system is essential. Any communication, it does not matter what, should go through the document control system!

Emails are wholly indispensable for day to day communications but if a formal notice is required, woe be anyone who does not follow the Contract’s clear requirements. If your contract does not include emails as an accepted means of notice, I suggest that printing out a copy of the email, and signing and sending it to the recipient, either with or without a cover letter (though I do not believe a cover letter provides any additional verification of the authenticity of the email).

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