FIDIC Notices of Claim: Three Judgments and the Direction They Point

Under the FIDIC forms, a contractor who wants more time or more money has 28 days to say so. Miss the window and the entitlement can disappear, however good the underlying case.

Almost everything written about this comes from law firms and claims consultancies, and it is written for the moment the dispute has already started. This is the same subject read from the other end: what the notice requirement means for the person running the job, in the months before anybody is thinking about arbitration.

Three judgments, twelve years apart, show which way this is going.

2014: the generous reading that still did not help

Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar [2014] EWHC 1028 (TCC). A tunnel under the runway at Gibraltar airport, on the 1999 Yellow Book. Akenhead J held that sub-clause 20.1 should be construed reasonably broadly rather than strictly against the contractor:

• a notice must be recognisable as a claim and must describe the triggering event
• the event or circumstance can mean either the incident itself or the resulting delay
• the clock can run from when delay actually occurs or becomes foreseeable
• the burden of proving a notice was late sits with the employer

That reads like a contractor’s judgment. The contractor still came away with almost nothing. One of its notices said that adverse weather conditions had affected the works — and that wording was held not clear enough to be recognisable as a claim at all.

So the lesson is not that the court was generous. It is that a generous reading of the clause will not rescue a notice that does not read like a claim.

2020: you are bound by what you wrote

Maeda Kensetsu Kogyo Kabushiki Kaisha v Bauer Hong Kong Ltd [2020] HKCA 830. Railway tunnel works in Hong Kong, where the sub-contractor hit unforeseen ground conditions. The sub-contract’s notice provisions followed the FIDIC pattern.

The Court of Appeal held that the contractual basis stated in the notice is the basis you are stuck with. The sub-contractor had notified on one basis and sought to succeed in arbitration on another. The arbitrator allowed that flexibility. The Court of Appeal did not.

Of the three, this is the ruling with the most operational bite and the one least reflected in how notices are actually written. A notice is typically drafted early, by whoever is nearest the problem, on incomplete information. This judgment means that document fixes your legal theory for the rest of the dispute.

2026: condition precedent, confirmed

Uniform Building Contractors Ltd v Water and Sewerage Authority of Trinidad and Tobago [2026] UKPC 2. Design, supply and installation of 28.43 km of pipeline from Rio Claro to Mayaro, on an amended 1999 Yellow Book with sub-clause 20.1 left unchanged. The two packages were worth roughly TT$15.92m and TT$12.64m; the contractor claimed around TT$13.91m. The contract was executed in May 2007 and termination notices followed in May and June 2009.

The Privy Council held that sub-clause 20.1 is in classic condition precedent form. No notice inside 28 days, no contractual entitlement. The Board described the purpose as certainty — that claims for additional money be clearly set out and promptly made.

The proportions are worth sitting with. The claim was roughly half the combined value of the packages. A sum of that size turned on whether certain pieces of paper had been issued inside a 28-day window, seventeen years before the judgment.

What the three add up to

Read together, the direction is one-way. 2014 says the clause will be read reasonably. 2020 says you are held to the basis you state. 2026 says the time bar is a true condition precedent. Nothing in that sequence moves in the contractor’s favour, and the 2017 editions tightened the drafting further.

Which means the notice cannot be a legal task that happens after the commercial one. It has to be an output of the monthly cost routine.

The operational consequence

Four things follow for anyone running the job rather than arguing about it later.

Record the date you became aware, on the day

The 28 days run from awareness, not from the day somebody decides the matter is worth claiming. If your records cannot establish when you knew, that becomes an argument you will have on someone else’s terms. A dated line in a site diary costs nothing and is the only cheap evidence available.

Put the notice question into the monthly review

For every package that has moved adversely this month, two questions: is there an event behind this, and has it been notified? Asked monthly, that takes minutes. Asked for the first time at the final account, it is archaeology.

Choose the contractual basis deliberately

After Maeda, the sentence naming the clause you are claiming under is the most consequential sentence in the notice. It is worth an hour and a second opinion. Where more than one basis genuinely applies, say so in the notice rather than picking the one that feels strongest in week two.

Which basis you name also decides whether you recover profit or only Cost, so it is a commercial decision as much as a legal one.

Remember a notice is not a claim

Notifying is not an accusation and does not commit you to pursuing anything. It preserves an option. It is cheap to issue and expensive to have omitted, which makes the asymmetry obvious — and yet the instinct on site is usually to wait until the position is clear, by which time the window has closed.

Why this belongs in cost control, not in the legal file

Timing is the whole reason. By the time a cost overrun is large enough to be unmistakably worth claiming, the 28 days from awareness have usually gone.

The signal that an event has occurred reaches your cost figures before it reaches anyone’s legal analysis. A package where committed cost has run ahead of progress is telling you something changed on the ground. That is the moment the notice question is live — not the month the forecast finally turns red. The monthly routine that catches it puts the two together deliberately.

The point

Notices are treated as paperwork for lawyers and are in fact the cheapest risk control on the job. The three judgments above differ on a good deal, but on one thing they agree: the contractor who wrote clearly and early kept its options, and the contractor who did not lost them regardless of the merits.

This is a practical reading for commercial and site teams, not legal advice. Judgments turn on their own facts and on the contract and jurisdiction in front of you — take advice on anything live.