Contract Notice and Recognition (Part 3)

This is the third post in a series regarding Construction Contract Notice and Recognition.

Initial questions regarding compliance with contract notice provisions can be answered in a straightforward manner.  Yes, of course it is best practice to comply with these important provisions.  This point is clearly stated in the following comments within LinkedIn Construction Law Group Discussion regarding notice.

Emily Monastiriotis • Cases like Education 4 Ayrshire Limited -v- South Ayrshire Council (which is subject to Scots law) illustrate the importance of issuing contractual notices particularly when such requirements are conditions precedent. As a lawyer my tendency is to think that clients ought to err on the side of caution and issue notices when any issue arises that may trigger any of the provisions of the contract. I accept and recognise that such notices may not be well received by the Employer but I think it is better to protect your rights rather than lose them because of a simple administrative failure to issue a requisite notice.

A Google search of notice of contract claims yielded some comments at HALBERSTADT CURLEY website.  The blogger states that there are three key components associated with contract claim notice:

  • Form of Notice
  • Content of Notice
  • Timing of Notice.

Regarding Form of Notice, experience suggests that there is some flexibility.  However, there is little reason to take liberties in this area.

Emily Monastiriotis • I think it is a case of one size does not fit all. In an ideal world (which I recognise we don’t live in) a notice should be headed as such and properly comply with the notice requirements of the contract. Many an hour and legal cost is spent construing letters, emails even meeting minutes to make them fit with the requirements of the notice provisions of a contract. It is also fair to say that, in England at least, Courts increasingly recognise email as an entirely valid and binding form of communication. The latest reminder of that is Golden Ocean Group Limited v Salgaocar Mining Industries in which the High Court ruled that that an exchange of emails between two companies could create a binding contract. But why take the risk? If you need to issue a notice, check the notice provisions of the contract and comply with them rather than get into a legal tangle.

Kirsteen Milne • I agree, always better to be safe than sorry! Nowadays email is often the preferred method of communication however in my experience formal notices still tend to be served by letter, even if they are also emailed for convenience.

At the risk of stating the obvious, giving notice requires recognition of the event or occurrence of the underlying event.  By this, I mean that notice follows an event.  In an earlier post, I cited both Bramble and Pickavance [link] regarding the purpose of providing notice.  A clear statement is presented by Bramble “Notice will allow the owner an opportunity to remedy the problem, mitigate the damages, or plan for the consequences.”  This purpose arises in the occurrence of an event, such as a delay by another party [e.g. owner/developer/employer].

Recognition can be straightforward or may contain several issues or challenges.  The following list of general examples is arrayed in order of degree of difficulty [easier first]:

  • Owner-initiated change/variance
  • Delay with clear documentation
  • Acceleration – directed with agreement
  • Delay without obvious indications
  • Acceleration – constructive
  • Disruption with a discrete event
  • Disruption without a discrete event.

Consequently, the project team must address means and methods that will identify the events that can reasonably be expected to occur.  Once identified, the compliance with notice must be implemented.

As a project/construction/contracts/business manager and similar, it is imperative that you define your project execution approach as it relates to notice and recognition (actually, recognition and notice).  The project execution planning, including staffing plan and related execution strategy, must reflect the realities of many factors.  Rationalize the project team’s accountability and responsibilities to their skill sets and the intended relationship with other parties.  Keep in mind that these same considerations relate to many project interfaces (owner/developer/employer to prime contractor; prime contractor to subcontractor; and others).

In a subsequent post, we will discuss some implications of not complying and related considerations.

Good luck and enjoy your program for compliance with construction contract notice and related recognition.

It is important to note that McLaughlin and McLaughlin [M&M] is not a law firm and is not intending to provide legal advice.  M&M is a consulting firm providing (among other services) non-legal expertise in dispute resolution and litigation support.  For further information on M&M services, please see