Construction disputes often arise due to differing views about what has previously occurred on a project.
Anthony Page, of HBJ Gateley Wareing, says written witness statements can improve prospects of a better outcome in construction disputes.
As those in the industry are well aware, construction disputes often arise due to differing views about what has previously occurred on a particular project. In such situations, those with relevant knowledge are keen to properly present the facts.
This is particularly the case where the existing documentation may not tell the entire story, or perhaps where a party's case would benefit from explaining the existing documentation further.
It can often greatly assist a party's case if a written statement covering all of the relevant issues is also submitted. A well-drafted witness statement that draws upon first hand experience can be effective, especially when supported by current records.
Witness statements can be used with legal submission documents when negotiating with another party. This may help to resolve issues and bring an early settlement.
Further, although witness statements are not commonly used during court proceedings within the UAE (being a civil jurisdiction there will not usually be a trial involving the testimony of witnesses), they will often play an important role by way of alternative dispute resolution forums.
For example, witness statements often play a key role during arbitration proceedings. This is acknowledged by the arbitration centres used in this region.
The arbitration rules issued by the Dubai International Arbitration Centre confirm at Article 29.4: "The testimony of witnesses may, either at the choice of a party or as directed by the tribunal, be submitted in written form, whether by way of signed statement, sworn affidavit or otherwise, in which case the tribunal may make the admissibility of the testimony conditional upon the witnesses being made available for oral testimony."
It is also expected that the arbitration rules to be issued by the recently formed Dubai International Financial Centre/London Court of International Arbitration (DIFC/LCIA) will have a similar provision.
The existing LCIA rules (which the new rules will largely follow) confirm at Article 20.3: "Subject to any order otherwise by the arbitral tribunal, the testimony of a witness may be presented by a party in written form, either as a signed statement or as a sworn affidavit."
The International Chamber of Commerce Rules of Arbitration also permit an arbitrator to require written statements for giving evidence.
Witness statements can also play an important role in the resolution of disputes by way of adjudication.
The Procedural Rules concerning Dispute Adjudication Boards that are contained in both the FIDIC 1999 Construction Contract and the Plant and Design-Build Contract (both commonly used in this region) enable adjudicators to establish the procedure in deciding a dispute.
This will often require the submission of witness statements. Significantly, this provision has also been inserted into the 2007 Abu Dhabi Government Conditions.
Although all of the main dispute resolution forums commonly used by the industry permit witness statements, is there any real benefit in doing so? Why not simply deal with all of the evidence using oral submissions?
Firstly, time can often be saved during a hearing if the witness has already provided evidence in written form. If there is little else to add to the original statement it may well be the case that the arbitrator requires the witness to attend the hearing only to take oath (this is a requirement of UAE Law in respect of arbitration).
This is even more likely if the opposing party does not wish to question the witness. In relation to adjudication, hearings can sometimes be avoided if adequate witness statements are provided. Clearly, this will save both time and money.
Secondly, in order to properly draft the statement, the witness will need to consider many of the relevant points to be addressed at any subsequent hearing. It is preferable that such issues are considered at an early stage.
The witness will need to have taken the time to consider not only the evidence to be presented but also what supporting documents exist to back it up.
This may mean that additional documents (such as site diaries, correspondence, minutes of meetings or photographs) are identified to support the statement. Such documents may not have been collated had the witness not taken the time to set out their evidence before the hearing.
The process of drafting the statement will also add structure to evidence that may have been absent had a witness given oral evidence alone. A well-drafted witness statement that is supported by relevant documentation can be a powerful form of evidence that greatly strengthens a party's case.
Thirdly, and perhaps most importantly, even if the witness is to give oral evidence at a hearing, a witness statement will often prove useful in resolving the dispute. More often than not, this exercise will highlight the strengths and weaknesses of a party's case and is likely to increase the prospects for amicable settlement.
Even if this is not achieved, it will help the parties to focus on the more relevant issues. It should also help the tribunal to better understand the dispute, increasing the prospects of an appropriate award being made.