Time to Notice Your Notice Provisions

Pre-lockdown, most construction professionals knew that a written contract should be agreed prior to commencement of works. However, more often than not, the desire to start the works meant contracts were either (a) not completed pre-commencement or (b) rushed, resulting in only the ‘big ticket’ items like fees, services and limitations of liability being considered in detail.

Covid-19 has highlighted not only the importance of concluding a written agreement, but also that seemingly inconsequential or “never going to need” contract provisions should not be overlooked.

There is little doubt that parties will now heavily scrutinise their contracts’ force majeure provisions. It is also an excellent time for employers, contractors and consultants alike to review their contracts and/or appointments in detail to consider what other provisions might be outdated or in need of adjustment in light of changes to both how we work and the industry as a whole.

An example that comes to mind is a contract’s notice provisions.

One of the ‘boiler-plate’ clauses within a contract, notice provisions are often unnoticed. Yet, as many have discovered recently while seeking to suspend works, unclear or outdated notice provisions can be problematic. How many contracts have provision for service by facsimile when few (if any) companies still have a fax machine? What happens where service provisions stipulate a particular individual or email address yet that person has ceased to be employed by the contracting party? What if there are no provisions outlining when service is deemed to have occurred? Or what if your notice provisions required a signature on receipt yet the receiver’s offices have – for the first time in known history – been closed for an indeterminate amount of time?

Given all the works suspensions in the past two months, it is likely that in due course disputes will arise as to whether or not notice of suspension was properly given. In particular, undoubtedly many notices were served by email. Will such notices be valid? The answer of course will depend on the contract, and whether it allows for notice by email, or stipulates that email is considered ‘in writing’. Where a contract is silent on whether email is deemed in writing, the matter will be one for interpretation. However, parties could do without such uncertainty when pressed to serve a notice.

If nothing else, Covid-19 has presented an opportunity for construction professionals to fully review their contracts, ensuring that any outdated terms or conditions are updated, and to consider what new provisions will be required both as a result of the lockdown experience, and to adjust to post-lockdown working.

If you have any queries about this topic, please contact any member of the Construction team.

If you aren’t receiving our legal updates directly to your mailbox, please sign up now