They've rejected my claim under a time bar I didn't know I'd signed
We notified a delay 3 weeks after it started, and the main contractor has rejected it under an amendment that gave us 7 days.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
What's happening?
Amendments often turn a notice clause into a time bar. A time bar says you must give notice within a set number of days, in a set form, or lose your right to more time or money. The clause is signed along with everything else. Nobody on site learns it exists until your main contractor rejects the first claim under it.
Whether your notice was really late, and what follows if it was, depends on three things. They are the exact wording, when the period started, and what your main contractor has said and done since. Those are questions for your solicitor, so ask before you accept the rejection.
What is certain is that the same clause applies to every event still to come on this job. So do the other notices in the subcontract. Miss the next deadline and you can lose that claim too. That deadline is the one you can still prevent.
The solution
Send the rejection, the clause and your notice to your solicitor now. At the same time, list every notice and time bar left in the subcontract, with its period, its form and who it goes to. Put each one where your team will see it. Set a diary entry that starts on the day an event happens, and name the person who sends the notice.
Post-Signing Contract Review sets out every date, notice and time bar you have committed to. It flags the terms that may not work as written. We then set out what your team must do, in a cheatsheet for the site and a diary of the deadlines. That way the next notice goes in on time.
Example
Illustrative example. The scenario and figures are invented.
The facts
A steel frame subcontractor is 3 months into a £1.1m subcontract. Late drawings held up its steel erection for 12 days, and it notified the delay 20 days after it began. The main contractor rejects the £38,000 claim. It relies on an amendment that makes notice within 7 days a condition of any extension or payment.
What happens
- The subcontractor sends the rejection, the amendment and its notice to its solicitor. The solicitor looks at when the 7 days began and at the main contractor's letters since.
- It reads the subcontract end to end and finds 11 notice obligations. Four are time bars, including 7 days for delay and 14 days for variations over £5,000.
- It puts each one in a diary that starts on the day an event is recorded. It names the site manager to send each notice and the commercial manager to check it.
- It puts a one page cheatsheet in the site cabin, showing each notice, its period and where it must be sent.
The notices left on the job
| Item | Figure |
|---|---|
| Notice obligations in the subcontract | 11 |
| Of which time bars | 4 |
| Shortest period | 7 days |
| Claim rejected under the first | £38,000 |
The outcome
The solicitor's view on the £38,000 is still awaited. Over the next 6 months, the subcontractor gives 5 notices, all inside their periods. None is rejected for lateness.