Notices are conditions precedent for recovery of L&E under JCT
In the recent case of FES Ltd v HFD Construction group Ltd [2024] CSIH 37, the Scottish appeal court has ruled that the notification of a claim for loss and expense is a condition precedent under the SBCC (and JCT) contracts.
In the contract the JCT standard clause stated that (if the Contractor incurs loss & expense)…subject to clause 4.20.2 and compliance with clause 4.21 be entitled to reimbursement of that loss and expense.
It went to adjudication and the adjudicator found that the giving of a notice under clause 4.21 was a condition precedent (i.e. if not complied with, you lose your rights to claim).
It went to appeal and the Inner House held that it was a condition precedent. Further that this was giving clause 4.21 its ordinary or plain meaning.
Hard-ball, perhaps; but it underlines the necessity to comply with good practice and ensure you get your notices in on time.
N.b. the above decision is from the Scottish appeal court however commentators advise that the English courts would possible come to the same conclusion. Be aware!
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