4 Top Tips on How to Defend a Delay Claim : Defence 1 – The Contractor Has Not Issued the Requisite Notices
You don’t need me to tell you that a construction delay claim is an almost inevitable part of every construction project.
In our experience, even the best run projects suffer delays, and this almost always results in one party chasing after money within a delay claim.
Preparing and defending a construction claim is an immensely complex undertaking, and much has been written about the delay and quantum analysis and the preparation of construction claims generally.
We’ve put together a list of what we think are the top defences to a claim you might receive. We’ll focus on the ones that we consider the big hitters or put simply the ones where we have had the most success with!
Defence 1 – The Contractor Has Not Issued the Requisite Notices
Ok, if we are honest, this is the most obvious place to start!
But it’s a good defence and always makes the claimant nervous! It’s the first hurdle for them to jump.
Most Contracts impose an obligation on the Contractor to issue a “Notice” notifying the client of the occurrence of an event that is causing him a problem and explaining why it’s the client’s liability.
These events can be causing a delay or additional cost to be incurred or both.
Sometimes these clauses are expressed as a condition precedent to the Contractor’s claim, i.e. no notice, equals no entitlement!
To be clear, the exact wording of a condition precedent clause has been the subject of much legal debate, but in general we are talking about a clause that states it is a condition precedent or otherwise in crystal clear and express language makes it clear that to be entitled to “A”, you must do “B”, otherwise if you do not you lose your entitlement to “A”.
This can be viewed as hiding behind the Contract, but these clauses serve a purpose for the Client. Put simply; it gives him the opportunity to address the issue as it arises, instruct mitigating measures, expedite his own actions, direct his own subcontractors etc. – without a Notice he may well be prejudiced and be facing a bill that could have easily have been avoided if he had been advised accordingly.
A typical delay claim will be made up of numerous delay and cost events, which together make up the delay claim. For example, a 12-month delay may be caused by 6 delay events. Accordingly, each delay event should be notified by a valid Notice.
So, what constitutes a valid Notice?
Well as always, it depends on the exact wording of the Contract. But here are a few things to check:
1. Is it issued promptly?
2. Is the Notice in the correct format?
3. Does it contain the correct information?
4. Has it been issued to the correct party?
5. Has it been issued in the correct manner?
6. Have the necessary periodic updates been issued?
And there you have it, a look at what the defence against a contractor failing to issue the requisite notice would look like.