Where notice is a condition precedent, the merits do not rescue it. The question is when the clock started, and that is a question about knowledge.
Condition precedent, or a procedural requirement.
A notice provision bars a claim only where the contract makes compliance a condition of entitlement in clear terms. Steria v Sigma confirmed that no particular form of words is required, provided the intention is clear.
FIDIC-based contracts state it directly: notice within twenty-eight days of the date the contractor became aware, or should have become aware, of the event, failing which the claim is lost.
That wording puts the fight on awareness. The date the contractor knew, or ought to have known, is a factual finding drawn from the record, and it is frequently earlier than the date pleaded.
There is an outer limit. Where a time bar would allow the employer to benefit from its own prevention, the prevention principle may be engaged, though a clear condition precedent will usually be upheld.
How a time bar is tested.
The same five questions, against every notice in the matter.
Read the clause
Establish whether compliance is expressed as a condition of entitlement.
Fix the trigger
Identify the event and what the contract says starts the period.
Find the awareness date
Establish from the record when the party knew or should have known.
Test the service
Confirm form, addressee, and method against the contract's requirements.
Check for waiver
Look for conduct, determinations, or correspondence treating the claim as live.
What the argument is built from.
Awareness is proved out of ordinary project traffic, not out of formal notices.
Where these claims fail.
Time bar disputes are usually decided on documents nobody drafted as a notice.
Awareness is dated from the formal claim
A daily report or an email will often show the party knew weeks earlier.
The notice went to the wrong recipient
Service on the wrong party, or by the wrong method, defeats an otherwise timely notice.
The notice did not identify the event
A general reservation of rights is not notice of a specific claim.
Waiver is never pleaded
Where the engineer determined the claim on its merits, the bar may have been waived, and that argument is often missed.
What the Matter Model does with it.
It tests notice compliance against the contract language, the triggering event, the date of awareness, the date notice was served, and any applicable exception, and it does that for every notice in the matter rather than the ones already in dispute.
Where awareness is evidenced earlier than the claim asserts, it surfaces the document that shows it.
Standards and authorities
- Steria Ltd v Sigma Wireless Communications Ltd [2008] EWHC 3454 (TCC)
- Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 447 (TCC)
- FIDIC Conditions of Contract, claims and notice provisions
General reference on how these disputes are argued. Not legal advice, and not a statement of the law of every jurisdiction or seat.
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