Notices, Conditions Precedent and Time Bars
One of the most frequently asked questions put to me at CPD events and training 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?’
I guess that the reason for the frequency of this question is that the answer is that it all depends, or to give a lawyer’s response, on the one hand it could be, but on the other hand possibly not. OK, so to fully answer the question, we should look at on what it will depend.
The legal jurisdiction is the most important thing here. In common law jurisdictions, if you have signed a contract in which you have agreed that you will be time-barred unless you submit a notice within a stipulated time period, then you will in fact be time barred.
In civil law jurisdictions however, time barring may not sit comfortably with certain principles of law. Civil law often contains provisions that the parties to a contract should act fairly. If one party sought to apply a time-bar clause for an event that he had caused, then this may not be regarded as acting fairly.
Civil law often prohibits undue enrichment. If a party therefore attempts to recover delay damages for a delay that he had caused, then this could be considered to be undue enrichment.
Additionally, civil law often prescribes that a just claim never expires, so again, the application of time-bars may not be permitted.
Toi further complicate matters, civil law usually includes provisions whereby if you sign up to something in a contract, including the fact that if you don’t send a notice, you can’t have anything. This is much the same as common law, so here we may have a potential conflict in the law itself and you can guess which interpretation the employer’s team will take in the case of non-compliance with notice provisions.
To even further complicate matters, there are however, circumstances in which the above civil law principles may not be applicable. Take for instance a situation where an engineer’s instruction would result in a claim for additional payment or an extension of time, but the engineer could not reasonably have been aware of this at the time the instruction was issued. In such a case, failure to submit a notice could deny the engineer the opportunity to mitigate the situation, possibly by cancelling the instruction. In such a case, it could be argued that the contractor had not acted in good faith and the claim may be dismissed.
As you may have gathered, this subject is complicated. There is however, a very simple solution. The solution is, if the contract stipulates that you should submit a notice within a certain time period, then make sure that you submit the notice.
This blog was authored by ICCP Executive Officer, Andy Hewitt.