Banking and finance dispute resolution
For the latest news and comment on banking and finance disputes.
For the latest news and comment on banking and finance disputes.
For all the latest news and comment in clinical negligence healthcare law
This collection looks at the latest news and comment on commercial contracting healthcare law. With the health and social care sector under…
For all the latest news and comment in employment and pensions healthcare law
For all the latest legal and regulatory news and comment in health technology
This collection contains DAC B eachcroft's latest report, The Route to Integrated Healthcare , which provides the first practical examples of how…
This collection looks at the latest strategic, commercial, regulatory and negligence legal and advisory news and comment in health and social care. …
For all the latest news and comment on employment and pensions law.
DAC Beachcroft Dublin specialises in insurance, professional indemnity, defendant personal injury, health, commercial litigation and employment work.…
For all the latest new and comment in tax law.
The GC Collective collection offers insight and comment for General Counsels (GCs) and in-house legal teams.
For the latest news and comment on Corporate, M&A and Equity Capital Markets.
Analysis, commentary and checklists on the legal and governance implications of Brexit on businesses operating in, and trading with, the UK
The Accountant's Liability Collection brings you topical news and insight of interest to accountants, actuaries, trustees and other financial…
Events and online training for the health and social care sector.
DAC Beachcroft's LatAm Quarterly Newsletter discusses topical news and issues in Latin America
In response to client suggestions and requests, DAC Beachcroft's insurance sector flagship publication.
For all the latest legal and regulatory news and comment in health and social care integration
For all the latest news and comment in corporate regulatory healthcare law
Find advice, commentary and thought leadership on all aspects of Director's & Officer's Insurance; from contract formation through to complex…
This collection looks at the latest news, comment and development on the law affecting mental health services. The law affecting mental health…
Our market-leading Information Law team regularly publish articles and updates addressing the ever-evolving Information Law landscape.
This collection looks at our Safety, Health and Environment Team and the products and services they can provide. In the climate of increased…
The Insurance Act 2015 comes into force in August 2016 and will represent a significant change to insurance contract law in this country. This…
Legislative changes are bringing major changes to the Insurance landscape. This collection houses DAC Beachcroft's alerts on the pertinent issues.
For all the latest news and comment in clinical regulatory healthcare law
Organisations face ever-increasing expectations from Government, regulators, customers or service users, and other stakeholders, so scrutiny and…
For all the latest legal and regulatory news and comment in healthcare estates and facilities management
This collection addresses the full spectrum of cyber security and data risk management – the zeitgeist of our age.
We have acted for clients in the majority of significant product liability cases that have been decided in the UK over the last 35 years. Our product…
Considering the future landscapes of our cities
The European General Data Protection Regulation (GDPR) came into force on 25 May 2016. A rewrite of European data protection law, the GDPR imposes…
Considering the future of housing
For the latest news and comment on public procurement law.
Welcome to the Construction Risks collection. This space is used to report upon issues of interest to those who seek to allocate, manage and reduce…
Technology, brands and intellectual capital are key assets for any successful business. Our intellectual property (IP) team are experts at helping…
Considering the future of retail
The Insurance Market Conditions and Trends report is DAC Beachcroft's insurance sector flagship publication. Now in its tenth year, the report…
The Solicitors' Risk Collection addresses issues and developments affecting legal practitioners, and the professional indemnity insurers of legal…
Published On: 2 September 2014
This issue is of singular importance (along with record keeping) in the construction industry. Whether it be in the context of delivering design or cost services or acting as project managers/Contract Administrators, the giving of notices can play a fundamental part to the commercial success of a project for a construction professional.
Construction professionals' fee accounts increasingly resemble contractors' final account claims where entitlement to additional fees (including for prolongation) and relief from delay damages can turn on the delivery of timely notices.
Recognising the contractual importance of giving proper notice is not always easy. First, there is the distraction of delivery an often complex and demanding service in tight timescales. Then, there is the reality that notices are often seen as unattractive messages to give. Combined with the stealthy and insidious creature that is scope creep and the human desire to help, it is understandable to see how a situation can arise where the consultant finds itself at the end of a problem project with additional costs, but without the requisite notices to allow it to recover that cost.
The perceived commercial dichotomy of wanting to please a 'good' client and looking out for one's own interests is of course a contradiction in terms.
In my experience, how you deliver a message and set expectation can help resolve this tension. Ultimately, the purpose of a notice is to help communication and to explain that while a particular issue might not be caused by you, you are nevertheless affected.
It is important to recognise early whether the giving of a notice is a condition precedent under your consultant's appointment (by condition precedent, I mean the absolute requirement to do something otherwise your associated rights and remedies will be lost forever). Increasingly, this is the case in the context of the consultant's entitlement to additional fees and will often be linked to a deadline for service.
Guidance on when there is a condition precedent was given in the House of Lords case of Bremer v Handelgelsellschaft mbH v Vanden Avenne Izegem P.V.B.A (1978), where it was held that a notice provision was unlikely to be a condition precedent unless it stated a specific time for delivery of the notice and stated clearly that the rights would be lost in the event of that the notice was not given.
In the case of Maidenhead Electrical Services Limited v Johnson Control Systems (1996), the contract required all claims for payment to be submitted in writing within 10 days of the occurrence from which the claim arose. This condition specifically provided that if no such notification was received then the claim would be 'automatically invalid'. At the same time, while the contract also required a claim for an extension of time to be made within 10 days of the occurrence from which the claim arose it did not contain a sanction for failure to do so. The Court held that while a claim for payment generally was a condition precedent, this did not extend to claims for an extension of time given the absence of similarly clear wording excluding future rights and remedies.
The law has since developed. In Steria Limited v Sigma Wireless Communications Limited (2007), the Court considered the absence of an express warning in the contract as to the consequences for non-compliance not to be a necessary ingredient for the service of a notice to be a condition precedent. In this case, an entitlement to an extension of time was said to be provisional upon the subcontractor having given 'within a reasonable period written notice to the Contractor of the circumstances giving rise to the delay'.
Care should be taken therefore to submit your notices. I recommend that this become a daily rigour – consultants may even wish to include this question as a screen pop up at the start or finish of the day, or as an ancillary action to completion of timesheets.
In the event you find yourself in the position (as happens) where you are concerned as to whether proper notice has been given (and you consider that their provision is a condition precedent), then you may still have room for manoeuvre.
In the recent case of Obrascon Huarte Lain SA v Her Majesty's Attorney General for Gibraltar (2014), the Court adopted a generous view in its construction of a commonly worded condition precedent clause that may well help a great number of parties who are concerned by late/invalid notification.
The clause in question in Obrascon Huarte Lain SA v Her Majesty's Attorney General for Gibraltar stated that, 'notice shall be given as soon as practicable, and not later than 28 days after [OHL] became aware, or should have become aware, of the event or circumstance'. The event or circumstance as covered included where 'completion...is or will be delayed by any of the following causes'.
This type of clause pervades the construction industry and has been seen as onerous to the supplier (in the event that the trigger for notification was foresight of a future delay where the vagaries as to reasonable foreseeability become relevant rather than the actual knowledge of delay in real time).
The Court disagreed and held that the supplier in these circumstances was entitled to a broad spectrum in which to submit a notice ranging from when it becomes apparent that there will be a delay or when the delay has started to be incurred.
Having decided this, the Court also adopted a purposive view as to what is good notice. General advice is that the contractual rules governing the service of notices (including whether it should be writing, who it should be addressed to, how it should be sent and when it is deemed to be received) will be strictly adhered to by the Courts and so must be followed to the letter if not to be invalidated.
In Obrascon Huarte Lain SA v Her Majesty's Attorney General for Gibraltar, the Court held that the primary purpose of the notice clause is to provide an arrangement whereby such communications are effectively dispatched and received. In this case, a notice was given to the site office rather than the head office as specified. The Court was persuaded by the fact that this was the working practice adopted hitherto by the parties without objection and upheld this notice as legitimate.
In my experience, often notice can be said have been given in one way or another whether in meetings or by email or in some other format. This case may help.
This case significantly assists construction professionals and reduces their risk of losing an entitlement.
In circumstances where you are concerned as to whether proper notice has been given, construction professionals should also consider whether:
While these arguments are very fact sensitive, my experience is that they can be highly effective.