(i) the architect receives a letter which advises him that information is required by a certain point in time in the future; and

(ii) the architect receives a letter which advises him that owing to a failure to provide information in due time there will be a claim for extra money.

Frequently, architects who are directly involved in disputes are asked about why they did not respond realistically, or at all, to issues raised in such correspondence. More often than not the answer given in reply is quite unsatisfactory because it is generally related to a natural human resistance to deal with something that may be difficult. For example: one type of answer often heard is based on a negative concept, which could be expressed in a form like the following: -

Of course, the above type of answer may be a valid response under certain circumstances, for example: where there is a prolific writer who is continually sending out standard letters which demand information and/or give notices of extra cost without much regard for the significance of the subject matter. However, in the context of this article such answers by the architect have frequently been heard during the process of trying to investigate disputes where the failure to respond to such letters is raising some very difficult points which may need to be dealt with in court proceedings or arbitration.

As may be expected, it often turns out, upon a closer investigation of the issues surrounding a dispute, that a more realistic answer for the architect to give for not replying to a letter requesting information by a certain time ought to be based on a concept that could be expressed in the following form:

And, of course, similar answers are likely to be given by the same architect for failing to respond realistically, or at all, to letters advising him that owing to a failure to provide information in due time there will be a claim for extra money. In short, the answers will be based upon the notion that the cause of the letter will somehow evaporate over a period of time.

Although such comments as referred to above appear on first thought to be quite unsatisfactory, we must all admit that concepts based upon such an approach, whether by design or neglect or whatever, are often successful. Indeed, I heard about someone who had a positive policy of never responding directly to anything generated by anyone else. He just ploughed ahead doing what he considered to be right and proper in dealing with his own duties and in general he was proved correct; save for one occasion that I heard about where his opposite number had a similar approach to such things. I heard that the outcome was a significant dispute, which cost a great deal of money to settle in both damages and costs.

Anyway, for more ordinary people like ourselves, how should we deal with, or give guidance about dealing with, the two points on which I have focused, namely: (i) the letter which gives advice that information is required by a certain point in time in the future; and (ii) the letter which gives advice that owing to a failure to provide information in due time there will be a claim for extra money?

Beyond relying upon worn out trite expressions, a definitive answer is not available. However, in general, I believe that the receipt of such letters is an opportunity. They provide an opportunity to discover what the writer of the letter is actually doing or thinking; an opportunity to gather specific facts as at the time of events happening; an opportunity to correct any wrong thinking on the part of the writer of the letter; an opportunity to reviews one’s own duties and how one may fulfil them; an opportunity to mitigate damages; and, moreover, an opportunity to demonstrate professionalism.

In fact, I would say that the receipt of such letters is too good an opportunity to be missed. Indeed, I would say that all letters received should be scanned for the purpose of taking advantage of such opportunities. I believe that this scanning process is very important because it is easy to miss points that later turn out to be highly significant. As for the trail blazing letters, they are usually less of a problem in this context because where a letter is received which makes it clear that one is being put on notice about the possibility of some future failure or that there has been a failure, namely: the type of letter which is often described as a letter written for a judge or an arbitrator, one can easily grasp the opportunity afforded because one can see the purpose of the letter.

However, where the letter is worded nicely and friendly, as it sets down a few facts and figures and perhaps a few dates, it may not give clear signals to its recipient, but when that letter is read out in front of a judge or an arbitrator those few facts and figures and a few dates will have just the same impact upon the judge or arbitrator as the formal heavyweight trail blazing letter specially designed for the purpose.

In respect of the last observation, I have in mind one particular person who has developed the fine art of writing letters which give few, if any, clues of pending troubles or claims, but which letters place on record all of the information upon which no end of future claims could be founded.

In summary, it seems to me that the real way to overcome a natural human resistance to dealing with the receipt of a letter that seeks to put the addressee on the spot is to treat all inward correspondence as an opportunity that should not be missed.

(Articles on the same topic appeared in the last two issues: no. 53, January 2004, p. 17, ‘Disputes – written communications’ and no. 54, May 2004, p. 10, ‘?Disputes – receipt of written communications.)