Back to Basics #3 - Notice Provisions for Extension of Time JCT D&B 2016

Notice Provisions for Extension of Time JCT D&B 2016

When your works are, or are likely to be, delayed under a JCT D&B 2016 Contract you are obliged to issue a Notice.

Clause 2.24.1 states that a Notice should be issued if it is “..reasonably apparent..” that the works “..are or are likely to be delayed..” and that such Notice should include “…cause or causes of the delay..” and identify “… any event which is in his opinion a Relevant Event…”.

Clause 2.24.2 then states that this Notice, or a second Notice issued “..forthwith…” should give “..particulars of its [the event] expected effects..” and an estimate on the effect on the Completion Date i.e. will the delay cause a delay to the Completion Date and if so to what date.

Clause 2.24.3 then advises that “..forthwith…” the Employer should be advised of any material change in the estimated delay or provide further reasonable particulars and information that the Employer may reasonably require.

The Notice required under Clause 2.24.1 is key to successfully making a claim. The Contract clearly states that the Contractor “…shall forthwith give notice…”. Whilst there are often debates if this Clause is sufficiently clear to be treated as a condition precedent (i.e. something you must do to maintain your rights) our advice is always to make sure that you treat it as such.

So, what does this Notice have to include? Many texts on this matter say that you must identify which Relevant Event Clause applies but that is not actually the case. You must explain what the event is and identify it as a Relevant Event, so whilst it is sensible and good practice to state which Relevant Event Clause you are relying on, you do not have to do so. Also, you should advise what the expected effects of the event will be i.e. what it will delay and by how long.

You must also (or as soon as possible after this Notice), advise what the effect on the Completion Date will be.

Therefore, the first Notice can describe the effect on the tasks which are impacted by the event, but it doesn’t have to detail the effect on completion. On that basis you have time to carry out your detailed analysis of the effect on completion after you have issued your first Notice.

Then, if things change, delays expand or contract or other information comes to light, you can revise your estimate of the effect on the Completion Date by issuing a further Notice.

A common question is “When do I have to issue the Notice under 2.24.1”?

Clause 2.24.1 states that the Notice should be issued “If and whenever it becomes reasonably apparent..”. This is somewhat subjective and often amended in the real world to avoid any uncertainty. Our advice is always do it as soon as you know about the event, if it doesn’t materialise that’s fine the Contract encourages you to advise of an event that may happen by using the terms “..or is likely to be delayed…” and it's better to advise of the delay that you think will happen than stay silent until it is too late to make the claim.
 
Ramskill Martin's Team of Experts can assist you draft your Notices for Extensions of Time, provide Planning and Programming Support so you can manage your time and can prepare delay analysis to demonstrate your entitlement.

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