Construction Law/[2.5] Employer's claim for Delay Damages contract DB99
Mr. John Dowse
When does this notification for Delay Damages need to be submitted?
The Contractor must be notified prior to the completion of the contractual period in the moment when it is very clear that the Contractor cannot complete the works within the contract period or the notification has to be submitted immediately after the contractual period expired.
Clause 2.5 specifies “the notice shall be given as soon as practicable after the Employer became aware …….”./
What is the legal interpretation of the phrase “as soon as practicable” ? Can one understand that the notification must be done after the contractual period expired or in any moment (during the contract) when it is obvious and clear that the contractor cannot complete the works within the contractual period?
In which case the Employer can lose his right for apply for delay damages
Thanks in advance,
Thank you for this question.
I presume that you are referring here to a FIDC based contract.
In the absence of any specific definition in the contract the word should be considered as having their normal, everyday meaning; so :as soon as practicable" means within a reasonable time after the occurrence of the event. To withhold the notice would be against the letter and spirit of the contract and whilst the Employer would not lose his entitlement to delay damages the entitlement could be restricted if the Contractor can show that the late notification prejudiced his from, for example, taking action in mitigation.
In my opinion to delay a notice until after the completion of the Works would be wrong on almost every occasion. The Employer should have formed an opinion on the situation at the latest within a few weeks before the contractual completion date (unless we are considering a delay of only one or two days) but the wording of the FIDIC general terms and conditions of contract do not prohibit such a let notice.
I hope that this assists you.
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