UK: Notices

Last Updated: 19 December 2017
Article by Jeremy Glover

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:

  1. it states the precise time within which the notice is to be served; and
  2. 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 example, in the case of Multiplex Construction v Honeywell Control Systems 3, Mr Justice Jackson (as he then was) held that:

"Contractual terms requiring a contractor to give prompt notice of delay serve a valuable purpose; such notice enables matters to be investigated while they are still current. Furthermore, such notice sometimes gives the employer the opportunity to withdraw instructions when the financial consequences become apparent."

At the same time, the courts have also recognised that care should be exercised when considering the potentially harsh effects of notice requirements. In the case of Obrascon Huarte Lain SA v Her Majesty's Attorney General for Gibraltar 4, a case involving the FIDIC 1999 form, Mr Justice Akenhead said that he could see:

"no reason why this clause should be construed strictly against the Contractor and can see reason why it should be construed reasonably broadly, given its serious effect on what could otherwise be good claims for instance for breach of contract by the Employer".

Changes to the FIDIC time bar

Indeed, FIDIC, in the Second Edition of the Rainbow suite 5, are introducing a new sub-clause, 20.3 "Waiver of Time-limits", which provides the DAB with the power to waive a refusal of an Engineer to consider a claim because it is said to be time barred. The DAB can take the following into account:

  • whether the other Party would be prejudiced by acceptance of the late submission;
  • whether the other Party had prior knowledge of the event in question or basis of claim; and
  • the extent to which, if at all, the Engineer may already have proceeded to make a determination, or more likely sought to negotiate an agreement.

That said, FIDIC are retaining the 28-day time bar which will apply to both Contractor and Employer claims. For FIDIC, notice provisions are intended to provide certainty to both parties as well as to preserve the contractual arrangement if the works are delayed or additional costs are incurred.

The position in 2017

It should be noted that Mr Justice Akenhead, in the Obrascon case, was not saying that clause 20.1 was not a condition precedent, but rather that care should be taken when alleging that proper notice had not been given on time.

The importance of following the notice provisions to be found in any contract was reinforced in the 2017 case of Glen Water Ltd v Northern Ireland Water Ltd 6. Although this was not a FIDIC contract, there was a condition precedent notice clause requiring claims for compensation to be submitted by Glen Water within 21 days of the occurrence of the compensation event that had caused or was likely to cause delay and additional cost.

The project in question was a PFI project agreement for the upgrade of sludge treatment services in Northern Ireland. The agreement provided for an initial construction phase followed by a 25-year operation and maintenance period. During the construction phase, Northern Ireland Water was required, acting as a prudent operator, to maintain its existing sludge treatment assets.

During the construction phase Glen Water issued several compensation event notifications including in relation to the new build cooling water system. Glen Water also notified concerns about Northern Ireland Water's maintenance of the existing assets. In a letter dated 20 October 2009 Glen Water alleged that Northern Ireland Water was not maintaining the existing assets. The letter went on to reject Northern Ireland Water's criticism of the new cooling water system design and assert that a compensation event had occurred.

At a meeting on 14 December 2009 Glen Water mentioned a claim for 񋛑m in relation to Northern Ireland Water's maintenance of an incinerator within the existing assets. An internal Northern Ireland Water document dated 15 December 2009 referred to the possibility of a claim arising out of Northern Ireland Water's failure to maintain the existing assets.

Glen Water subsequently commenced proceedings, claiming some 4.4m in compensation for defects in the pressure steam system. The question of whether or not effective notice of a compensation event had been given was addressed as a preliminary issue.

Glen Water argued that its letter of 20 October 2009 and the discussions at a meeting held on 14 December 2009 were sufficient to satisfy the clause in question when looked at in proper context with all of the background taken into account, in particular that in advance of 20 October 2009, Glen Water had frequently expressed concern about Northern Ireland Water's maintenance of the existing assets, the subject of the claim. In reply, Northern Ireland Water said that on an objective construction the letter was concerned with the cooling water claim, something different.

Here, Keegan J noted that:

"I do have some sympathy for the plaintiff's position because the failure to notify prevents a claim being made. That may seem harsh when commercial parties anticipated that a claim might come to pass. I should say that Mr Brannigan did leave no stone unturned in arguing this case. However, I have to decide the case within the parameters of commercial and contract law. The contractual terms are clear and commercial certainty is an overarching consideration. The evidence as to the commercial context and surrounding circumstances has not remedied the defect in the letter. It seems to me likely that the notification requirement was overlooked amid a mass of claims and in the midst of an ongoing process of discussions."

As notice had not been given within the time limits laid down by the contract, the claim was barred. The Judge was clear that any "notification should be clear and unambiguous". Meeting minutes did not constitute a proper notification of claim. Whilst the parties had had discussions regarding the potential claim event, the onus was still on the Contractor to have followed the contract and notify its claim formally. It was also an issue of some importance that the letter Glen Water was trying to rely upon, in contrast to the other compensation event notifications, was not clearly marked as such. The fact that internally, Northern Ireland Water had considered the possibility of a claim arising was irrelevant. The fact that Northern Ireland Water had apparently anticipated (and possibly obstructed a claim by ignoring Glen Water's requests to inspect the existing assets) was again not sufficient to override a failure to give proper notice.


Whilst, as the words of Mr Justice Akenhead in the Obrascon case suggest, courts may have some sympathy for the potentially harsh effects of time bar clauses, that sympathy will only go so far. Keegan J thought it significant that in adjudication proceedings brought in 2014, Glen Water had not based a claim for the same compensation upon the letter of 20 October 2009 or the meeting on 14 December 2009. They had not approached the claim in a consistent way.

It is possible that the changed approach was made because of the fact that the claims had reached the courts. However, in reaching her decision, Keegan J referred favourably to the Scottish case of Education 4 Ayrshire Ltd v South Ayrshire Council 7 where Lord Glennie was wholly unsympathetic to the suggestion that allowance should be made for the fact that notices given in compliance with conditions precedent might have been drafted by businessmen rather than lawyers, noting that:

"It is within judicial knowledge that parties to contracts containing formal notice provisions turn immediately to their lawyers whenever there is a requirement to give notice in accordance with those provisions. But even if that were not the case, there is nothing in clause 17.6.1 [of a Public Private Partnership or PPP Contract] that would not readily be understood by a businessman unversed in the law."

Under clause 20.3 of the new FIDIC form, Glen Water would have been able to argue that Northern Ireland Water had prior knowledge of the event in question and understood the basis of the claim being made. Therefore it could not be said that they were prejudiced by acceptance of the late submission. However, under the contract in question, those arguments were not open to them. Here the contract was clear and whilst the parties had had discussions regarding a potential claim event, that, under the strict words of this particular contract, did not relieve the contractor of the obligation to formally notify the claim.


1. Temloc v Errill Properties (1987) 39 BLR 30, CA per Croom LJ

2. [1978] 2 Lloyd's Rep. 113

3. [2007] EWHC 447 (TCC)

4. [2014] EWHC 1028 (TCC). The case was considered by the Court of Appeal in 2015, but the appellate court made no comment on this part of Mr Justice Akenhead's decision, [2015] EWCA Civ 712

5. This is being released in December 2017. The comments here are based on the 2016 Pre-Release Yellow Book

6. [2017] NIQB 20

7. [2009] ScotCS CSOH 146

This article is taken from Fenwick Elliott's 2017/2018 Annual Review. To read further articles go to Fenwick Elliott Annual Review 2017/2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq抯 use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor抯 own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq抯 Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq抯 Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq抯 right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions