Notices and time bars

The nine questions every notice clause answers

1. Trigger: what event or state of knowledge starts the obligation.
2. Recipient: who must receive it, in what capacity, at what address.
3. Form: written, in a stated format, through a stated system, in a stated language.
4. Content: what the notice must say to be a notice at all.
5. Clock: how long, measured in what kind of days, from what moment.
6. Continuing events: whether a further or updating notice is required.
7. Particulars: what must follow, and by when.
8. Waiver and prejudice: whether either is available, and on what facts.
9. Consequence: what is actually lost if the clause is not complied with.

Awareness is an evidence question

Where the clock runs from the point a party became aware, or should have become aware, the dispute becomes factual: who knew what, and when. That is answered by the contemporaneous record or it is answered by memory, and memory loses. This is one of the clearest links between record-keeping and money on any project.

How the main forms differ in character

Contract text NEC4 imposes a fixed period from the point the contractor became aware of a compensation event, and drafts the consequence as a bar. FIDIC 2017 works on a notice period from awareness with a structured claims procedure and a dissatisfaction route. JCT requires notice when delay becomes reasonably apparent, without a fixed countdown in the unamended standard forms. AS 4000 and the US forms each have their own structures. Every one of these is routinely amended, and the amended period is the only one that matters.

Time bars are not all the same

A condition precedent extinguishes the entitlement. A procedural requirement may only affect assessment, or shift a burden. Whether a particular clause is one or the other is a question of construction, and general statements about time bars being unenforceable are unsafe in every jurisdiction this site covers.

The practical discipline

• Build the notice register on day one, with the clause, the period and the recipient for each notice type.
• Notify early and factually. A notice is not a claim, and it does not have to prove anything.
• Send it the way the contract says, to the person the contract names, and keep proof of delivery.
• Diarise the particulars deadline at the same time as the notice.
• Keep notifying for continuing events, rather than assuming the first notice covers the year.

When a notice may have been missed

Take advice quickly, preserve the record of what was known and when, and do not paper the file retrospectively. A reconstructed notice trail is worse than a missing one, and it converts a contractual argument into a credibility problem.