Notices: Should a Contractor Submit if He is Not Sure Whether He Intends to Make a Claim?

A blog follower recently asked for advice on the correct interpretation of FIDIC Sub-Clause 20.1 (Contractor’s Claims) with regard to situations where the Contractor is not sure if he will submit a claim or not. It’s not unusual for the Contractor to become aware of an event that may cause delay, the occurrence of additional Cost, or entitlement for additional payment. However, he may not be aware of the final effect of the event at the time that he becomes aware of the issue. For example, perhaps a delay will end before it affects the Time for Completion or perhaps an instruction received will not constitute a variation which will change a lump sum contract or, possibly, the Contractor will just decide that the value of the claim will not justify the time and cost involved in preparing it. The wording of the first part of this clause is as follows: ‘If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any…

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FIDIC Red Book: Delayed Drawings and Instructions and Engineer’s Delay, Impediment and Prevention

One of the modules on the Construction Claims Premium E-Course delivered by ICCP training partners, Claims Class, asks students to review various case studies to identify potential claims. Having identified the claims, students are asked to explain the reasons for the claim, what may be claimed, the contractual clauses under the FIDIC Red Book that provide entitlement and explain how the claim would be evaluated. Having completed the module, a student asked me - his tutor - some questions which I think are worth sharing with the broader community. QUESTION 1: Could Sub-Clause 1.9 be used against RFIs (requests for information), shop drawings, material submittals, or any sort of instruction / information? Sub-Clause 1.9 (Delayed Drawings or Instructions) provides that ‘The Contractor shall give notice to the Engineer whenever the Works are likely to be delayed or disrupted if a necessary drawing or instruction is not issued … within a particular time’. The sub-clause allows the…

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Notices, Conditions Precedent and Time Bars

One of the questions I get asked the most at CPD events and workshops is in connection with notices. The questions are usually in the form of ‘If we fail to send a notice of claim, or we do not send the notice in time, will our claim be time-barred?’

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Canada: Recent Decision Confirms that Notices of Claims Do Not Have a ‘Standard Form’

What constitutes a notice of claim? Parties to construction lawsuits often find themselves disputing whether a particular email or letter is a valid notice of a claim that complies with the notice provisions of their contract. While some contracts spell out exactly how a notice is to be prepared, sent and addressed; others are vague or silent on the issue. In light of the recent decision in Ledore Investments Ltd. v. Ellis-Don Construction Ltd., 2016 ONSC 5441, parties should be aware that courts are concerned more about whether notice was properly given rather than how it was given. In Ledore, an arbitrator had concluded that the contractor's relatively robust notice of claim to a subcontractor did not satisfy the requirements of the contract, and the contractor appealed to the Court. Specifically, the Court was asked to decide whether the letters sent by Ellis-Don to its subcontractor, Ross Steel, constituted a "claim made in writing". Whether or not the communication was actually a…

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The Requirement to Give Notice of Claims

In this article, Anthony Hussey of Hussey Fraser Solicitors addresses the requirement to give notice of claims under most forms of contract. “Under most forms of contract it is now a condition precedent to making a claim that notice be given of the claim within a short period of time.” Once upon a time there was no need to give notice of claims under most standard forms of contract. Prior to 2007 the standard contracts in use in Ireland were the IEI Third Edition for Civil Engineering Contracts and the RIAI Forms for building works. While these contracts did require the contractor to give notice of claims in a timely fashion there was no express penalty for failing to do so. The result was that unless the respondent to the claim could show actual prejudice as a result of the failure to give notice, the claim would succeed, no matter how late. The same was the position under the standard forms of sub-contract current at the time. The pendulum has now swung in the opposite direction.…

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