Nine Essential Tips for Mastering Delay Notices in Construction Contracts
- Jinoy Viswan
- Sep 21
- 4 min read
Every delay begins with a moment.
An approval not issued. A drawing not released. A delivery not made.
The contract programme continues, but the works slip. In that instant, the contractor faces a choice: act with precision, or surrender entitlement.
Delay Notices are not paperwork. They are the legal mechanism that protects time, preserves claims, and prevents the imposition of liquidated damages. When handled casually, they collapse under scrutiny. When issued in compliance with the contract, backed by evidence, and clearly linked to impact, they stand as enforceable rights.
Common Law v. Civil Law Treatment of Notice
In common law jurisdictions, courts interpret Notice provisions strictly. Failure to comply with contractual timelines or formats may extinguish entitlement entirely, as confirmed in Obrascon v Gibraltar. By contrast, civil law jurisdictions often place greater weight on principles of good faith and may excuse non-compliance where the employer suffers no prejudice. Contractors operating in mixed jurisdictions, such as the Middle East, must therefore recognise that while the governing law may be civil, the contract itself often borrows heavily from common law drafting. Compliance with the contractual Notice procedure remains the safest course in every case.
Capitalisation of “Notice”
In most standard forms of contract, the word Notice is a defined term. It signifies a formal communication governed by specific contractual requirements of content, timing, and delivery. By capitalising the word, the distinction is made clear between everyday correspondence and a contractual Notice that preserves entitlement. Treating a Notice as anything less than a defined instrument risks misinterpretation. In tribunal proceedings, precision in language and compliance with the contractual definition of Notice are as important as the substance of the delay event itself.
Mastering delay Notices is not optional. It is the contractor’s frontline defence.
1. Understand the Contract
Entitlement begins with the contract. FIDIC, NEC, and JCT all impose different obligations for giving Notice. Some treat Notice as a condition precedent, meaning that entitlement does not exist without it. Others specify rigid formats or short timeframes.
Contractors must know:
The exact clause governing delay Notices.
The time limit for issuing Notice.
The form and addressee required.
Without strict compliance, even genuine delays may be rejected.
2. Timely Issuance
Most contracts impose short deadlines. Under FIDIC Sub-Clause 20.1, the contractor must notify within 28 days of becoming aware of the event. NEC contracts often prescribe two weeks.
Tribunals consistently enforce these deadlines (Civil Law may treat this a bit leniently). Delay in notification is fatal to entitlement. Notices must be issued at the first awareness of a delaying event, not after the impact has fully materialised.
3. Detailed Documentation
A notice unsupported by records is an empty submission. A defensible Notice should include:
The date of the delaying event.
The specific activities affected.
Copies of relevant correspondence, RFIs, or instructions.
Daily logs or meeting minutes where the event was recorded.
Substantiation converts assertion into proof.
4. Clear Communication
Ambiguity invites dispute. Notices must identify the cause, quantify the effect, and state the anticipated duration of delay. Phrases such as “employer-caused delay” are insufficient. Precision in language ensures clarity and credibility.
5. Use Standard Forms
Standardised templates ensure compliance and consistency. Contracts often append sample formats that must be followed. Tribunals favour Notices that are structured and complete over those that resemble informal correspondence.
6. Identify Impact on Schedule
Cause alone does not establish entitlement. The contractor must link the delaying event to its impact on the programme. This requires referencing the approved baseline and demonstrating which critical activities are affected.
Causation and effect must be explicitly tied to time. Without this linkage, the Notice is incomplete.
7. Propose Mitigation Measures
Tribunals examine whether the contractor acted reasonably to limit delay. Notices should record proposed mitigation, such as resequencing, resource increases, or alternative procurement. Even partial mitigation strengthens the contractor’s credibility and reduces the risk of contributory negligence arguments.
8. Keep Records Updated
Delay is dynamic. One Notice may not cover the full evolution of the event. Updated Notices must reflect continuing impact, revised forecasts, and extended disruption. Tribunals favour contemporaneous updates over retrospective explanations.
9. Seek Expert Advice
Complex delays, particularly where concurrency or design changes are involved, require forensic delay analysis and legal coordination. Early engagement of experts ensures compliance with contract procedures and builds a foundation for future adjudication or arbitration.
Case Law Insight: Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar [2014] EWHC 1028 (TCC)
In Obrascon, the High Court held that the 28-day Notice requirement under FIDIC Sub-Clause 20.1 was a strict condition precedent. The contractor failed to notify within time and lost entitlement.
The judgment confirms a fundamental principle: delay Notices are not formality. They are gateway conditions. Without timely Notice, the contractor’s rights to additional time or money are extinguished, irrespective of the merits of the underlying delay.
Tailpiece
Delays occur in every project. Whether they become disputes depends on one factor: the contractor’s discipline in giving notice.
Contractors who notify promptly, document precisely, and link cause to effect protect their rights. Those who improvise or delay hand the employer a complete defence: no notice, no claim.
In construction, time is money. Delay Notices are the bridge between lost time and preserved entitlement. Contractors who master them secure not only extensions but also respect in tribunal proceedings.
Because projects slip. Rights do not have to.
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