Use Of Time Bar - In Other Words "giving Notices On Time" Under Construction Contracts

• Published date: 11 January 2023
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Arbitration & Dispute Resolution, Construction & Planning
• Law Firm: Barton Legal
• Author: Mr Bill Barton

Both NEC and FIDIC contracts expressly state that notice of a claim is a "condition precedent".

The 2017 suite is very prescriptive and now contains a number of other detailed processes and procedures that set out exactly what is expected of each of the parties and the consequences if they fail to comply. In some cases, non-compliance triggers a time bar.

FIDIC 2nd edition 2017 contains 5 time bar clauses in relation to Claims and dispute resolution process and 1 time bar in relation to amounts due in the Final Payment Certificate.

Key changes in FIDIC 2nd Edition 2017 are;

• time bars apply to both Parties, and
• circumstances that the claiming Party can challenge in justifying late submission of a Notice of Claim (Sub-clause 20.2.5) - prejudiced, prior knowledge of the event (or circumstance) or the contractual (or other legal basis) of the Claim,

Notice provisions come in all shapes and sizes, and the warning is that it is a question of interpreting and applying each clause.

Most clauses require a notice of claim before a claim is submitted to litigation and/or arbitration, and in addition probably three things. Those are:

• a statement about the nature of the claim;
• the amount of the claim, which may be an estimate; and
• the contractual basis for the claim (here's the problem area).

All of that information has to be contained in a notice that's given within the time stipulated within the clause.

The Court's most recent approach, certainly as far as the common law is concerned, is generally to treat any such notice provision whether it is described expressly as a condition precedent or not, as a condition precedent.

So, if you do not serve your notice in time or you served your notice in time but it is deficient, e.g. didn't adequately state the nature, amount or contractual basis of the claim, then you are barred from bringing a claim. And the trend in common law outside the specific area of construction law contracts is to favour certainty over fairness or flexibility.

Below are some useful case laws related to time bar:

• Grove Developments v. S&T UK Ltd [2018] EWCA Civ 2448) - distinguish from notices under standard construction contracts (pay less...