Can the architect ignore delays if the contractor has failed to give proper notice?
This is a common question which depends on the terms of the contract. At one time it was considered that if the employer committed any act of prevention, the contractor was entitled to an extension of time irrespective of any notice provisions and if no extension was given, time became at large and the contractor’s obligation was simply to complete the Works within a reasonable time.
It has since been recognised that such an approach would allow a contractor to put time at large at will by the simple expedient of ignoring notice provisions which would have triggered an extension of time. It has been held that if a contractor ignores a notice provision which is a condition precedent, there will be no entitlement to extension of time, even though there would otherwise be a clear basis on the grounds of the employer’s acts of prevention. It has been said that in order for a requirement for notice to be a condition precedent, several serious conditions must be satisfied. For example, the time for service of the notice must be stated and also must make clear that if there is a failure to give the notice, a specific right will be lost. That position has been considered by the court and it was rejected expressly in regard to extension of time where there was a clause which had as a proviso the words: ‘the sub-contractor shall have given within a reasonable period written notice to the contractor of the circumstances giving rise to the delay’. The court held that: if there is a genuine ambiguity as to whether or not notification is a condition precedent, then the notification should not be construed as being a condition precedent, since the provision operates for the benefit of only one party i.e. the employer, and operates to deprive the other party (the contractor) of rights which he would otherwise enjoy under the contract.
. . . in my judgment the phrase . . . is clear in its meaning. . . . In my opinion the real issue which is raised on the wording of this clause is whether those clear words by themselves suffice, or whether the clause also needs to include some express statement to the effect that unless written notice is given within a reasonable time the sub-contractor will not be entitled to an extension of time.
In my judgment a further express statement of that kind is not necessary. I consider that a notification requirement may, and in this case does, operate as a condition precedent even though it does not contain an express warning as to the consequence of non-compliance.
In City Inn Ltd v Shepherd Construction Ltd, the contractor was required to carry out various actions and make specific submissions before being entitled to an extension of time in regard to certain architect’s instructions. The court had no hesitation in holding that failure to comply with the requirements would prevent the contractor from getting any extension of time in respect of the particular instructions. It is quite common to find a requirement for notice in standard form contracts, particularly in regard to extensions of time and applications for loss and/or expense. These recent decisions suggest that the courts will not ignore a contractor’s failure to give notices prescribed by the contract and it seems likely that such clauses will be interpreted as conditions precedent. If that is correct, contractors will have to give timely and effective notices before the architect need consider them.