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Construction Law/Contractor's Claims - Clause 20.1 of FIDIC Red Book

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Question
Dear Mr Dowse,

The first sentence of the 2nd paragraph of Clause 20.1 stipulates that " If the Contractor fails to give notice ............ in connection with the claim". My question related to this clause is as follows :

Can a statement by the Contractor during a site meeting or a sentence in one of his letters in respect of delays be construed as a notice of claim under this clause or should this have to be the subject of a formal separate correspondence clearly stating that the notice is under this specific clause, for the contractor to be entitled to a claim.

Thank you for your answer and help.

Best Regards

Michael

Answer
Dear Michael,

Thank you for this question.

Under the FIDIC form of contract all communications, including notices, must be in writing; as such a statement made during a site meeting is not deemed sufficient to be considered as a clause 20.1 notice. The difficulty comes, however, in that different legal jurisdictions adopt alternate positions on whether there was constructive knowledge of the event/claim notwithstanding the lack of formal notification. In this respect I would need further details to be able to expand upon my general answer that a statement in a site meeting is not a notice as required by the contract.

Where a sentence is included within a letter from the contractor, that may be sufficient to be deemed as notification; all will depend upon the wording of the statement made.

It is not necessary to expressly state the clause under which notice is being given unless the FIDIC contract requires such an inclusion; nor is is necessary for the matter to be the subject of separate correspondence. It is, however, necessary that there is sufficient clarity in the statement. If you can provide details of how the statement was worded, I will be happy to comment further.




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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