Notices

Under most formal contracts it is necessary for the Contractor to give notice of various matters as part of the process of seeking extensions of time and/or loss and expense. Depending on its terms, the notice provision will be treated either as a condition precedent or merely as a warranty, breach of which will typically sound in only nominal damages. Increasingly notices clauses are expressed as conditions precedent. In other words, a failure to comply with the requirements of the clause will result in a party being prevented from making what might otherwise be a perfectly valid claim.

The FIDIC 1999 form, sub-clause 20.1 expressly makes it clear that:

"If the contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the contractor shall not be entitled to additional payment, and the employer shall be discharged from all liability in connection with the claim."

Core clause 61.3 of both the new NEC4 forms provides that:

"lf the Contractor does not notify a compensation event within eight weeks of becoming aware that the event has happened, the Prices, the Completion Date or a Key Date are not changed unless the event arises from the Project Manager or the Supervisor giving an instruction or notification, issuing a certificate or changing an earlier decision."

The attitude of the UK courts to time bars

Generally, in the UK, the courts will take the view that timescales in construction contracts are directory rather than mandatory 1, unless, that is, the contract clause in question clearly states that the party with a claim will lose the right to bring that claim if it fails to comply with the required timescale. In the case of Bremer Handelgesellschaft mbH v Vanden Avenne Izegem nv 2, the House of Lords held that a notice provision should be construed as a condition precedent, and so would be binding if:

it states the precise time within which the notice is to be served; and it makes plain by express language that unless the notice is served within that time the party making the claim will lose its rights under the clause. Here, under the FIDIC 1999 form, sub-clause 20.1 expressly makes it clear that:

"If the contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the contractor shall not be entitled to additional payment, and the employer shall be discharged from all liability in connection with the claim."

Further, the English courts have confirmed their approval for conditions precedent, provided they fulfil the conditions laid out in the Bremer case. For...