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Construction Law/FIDIC 1999 red book claims

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Question
I engaged a subcontractor on a back to back based on 1999 red book. I issued a cl 20.1 notice to claim to my subbie instead of the cl 2.5, halfway into the contract in anticipation of LADs from client. I was never charged LADs by client because I completed the project before completion date.The claim to the subbie was never substantiated. Now, the subbie has left site at my instructions and i realise that I owe him a fortune due to the underclaims: My question is:
1. can i now correct the defective cl 20.1 notice to the correct cl 2.5 notice and backdate this cl 2.5 notice to the start of the contract to support my counterclaim against the subbie?
2. can i now resuscitate a breach of contract against the subbie?
3. Fact is I had to re-do some of the defective works during the contract, though this was not entirely due to the subbie's fault. it was a combination of the subbie's fault and mine.
4. at this stage i wonder if my counterclaim can stand both in principle and procedure. Is there a way I can prove my counterclaim in this situation at the common law ?

thank you

Answer
Dear Paddy,

Thank you for this question.

Your action against the sub-contractor may be independent of any action by the Employer against you as contractor. The wording of the subcontract, of which I have no knowledge, will be important. In theory, however, the following applies:


1: You should not back date any notice. Such an action is, at best, a misrepresentation; at worst it could be an intention to commit fraud.

2: A claim can be brought against the subcontractor even after termination but before a final certificate is issued and providing the claim is made within any statutory limitation period.

3: Your claim should represent the damage incurred as a result of the subcontractor's breaches only; however if you did not give the subcontractor notice, at the relevant time, of the defect and an opportunity for him to rectify at his own cost, you may be prejudiced in recovering the full amount of your costs.





I hope that this assists you.

Kind regards,
John Dowse

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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