In modern construction contracts, a missed claims notice can have dramatic consequences. It can mean the difference between legitimate recovery of costs or losses and being denied either, even becoming liable to make positive payments to the other contracting party. This article explores how these provisions typically operate, the challenges they pose, and whether a more balanced approach in their drafting and use may be justified.

Critical time is very often the cornerstone, some would say obsessive focus, of claims on construction projects.2 It generates well-known issues over methods of delay analysis and their resolution, with some seemingly intractable problem areas like concurrent delay. Current law, practice and procedure in international construction seems in substantial part to have become hostage to the position reached in common law jurisdictions on those topics, notwithstanding shortcomings there, for example, of either: (1) any sound definition of concurrent delay; or (2) any acceptable resolution of liability for it (thus, for example, sub-clause 8.5 of the FIDIC 2017 Red Book General Conditions (hereafter “FIDIC Red”), kicks the subject off into the long grass of the Special Provisions).

I explore here a topic in which timing is also typically regarded as critical – notices of claim.

Consider the following hypothetical example, in which the FIDIC Red Conditions apply (particularly in the context of FIDIC’s promotion of its terms as a fair and balanced risk/reward allocation between the contracting Parties, part of its Golden Principles):