What happens if I miss the deadline for a delay notice?
It depends on your subcontract: where the notice is a condition of an extension, a late one can lose you the extension.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
The answer
Where it is only a duty, a late notice may still count, but it weakens your position. So read the clause itself. Look for words such as condition precedent, or a line saying you are not entitled to an extension unless notice is given. Those point to a bar: no notice, no extension. A plain duty to notify forthwith, meaning without delay, usually does not create a bar. Even then, your main contractor may say your lateness cost it the chance to act, and grant you less. Either way, do not stay silent. Send the notice as soon as you realise, with the particulars, the records and a short explanation of why it is late. Some forms also allow the completion date to be reviewed after completion, whether or not every notice was given, so ask for that review in writing. Whether a missed bar can be avoided, for example where your main contractor caused the delay itself, is a question for your solicitor.
Example
Illustrative example. The scenario and figures are invented.
The facts
A flooring subcontractor realises, 5 weeks late, that a 2-week delay from a late screed handover was never notified. Its subcontract requires notice forthwith but does not make the notice a condition of an extension.
What happens
- It sends the notice at once, with particulars, the screed contractor's handover dates and a short explanation of why the notice is late.
- The main contractor grants 6 working days rather than the 10 sought, citing the late notice.
- At the final account, the damages are counted from the completion date as extended by the 6 days.
The outcome
The 6 days take £9,000 off the damages at £1,500 a day. Had the notice never been sent, the charge would have been counted from the original date.
Keeping every delay notice inside its period is what our Delay Damages Prevention routine is for.