With many construction sites across the UK closed as a result of the COVID-19 pandemic, attention has turned to the contractual implications of site closures and the notice requirements under construction contracts, particularly in the event of delay to progress.
Notice clauses will typically specify:
- the information to be contained in any notice;
- who the notice should be sent to;
- the method by which the notice should be sent (recorded post, fax or email);
- the timescales for issue of a notice; and
- when the notice will be treated as delivered depending on the method of delivery.
The required method of delivery will often vary under a construction contract, depending on what the particular notice relates to.
Importantly, compliance with these provisions is often drafted as a condition precedent - this means failure to strictly comply with the provisions may result in a contractor not being entitled to claim for additional time and money.
The current pandemic has presented logistical hurdles for many contractors in complying with these strict provisions, particularly where the contractually specified means for delivery of notices is recorded or tracked postal delivery.
Where contractors are faced with such challenges, the solution will typically be to issue notices by email. However, unless and until the notice provisions are amended by agreement, their provisions remain in force and failure to comply with them may leave a contractor at risk.
Steps should therefore be taken to agree an alternative method of delivery with the employer at the earliest opportunity, with the terms documented in writing using a short supplemental agreement.
Any agreement should specify - as a minimum - that it applies to all notices issued under the contract and the email addresses to which notices should be issued. Parties can also consider whether any amendments to the notice provisions should remain in place for the remaining duration of the contract.