What Counts as a Valid Notice of Claim Under FIDIC?

You sent an email. Or raised the issue in a progress meeting. Or issued a letter describing the delay.

The question now is: did it actually count as a contractual Notice of Claim?

This article covers the 1999 and 2017 Red, Yellow and Silver Books.

Under FIDIC, the answer depends on the edition, the form of contract, the Particular Conditions and what was actually communicated. A useful validity review therefore asks six questions:

1. Was the communication recognizable as notification of a claim?
2. Did it identify the event or circumstance giving rise to the claim?
3. Was it sent to the correct contractual recipient?
4. Was the required communication procedure followed?
5. Was it sent within the applicable notice period?
6. Have the Particular Conditions changed any of those requirements?

The consequences can be serious. Under Sub-Clause 20.1 of the standard 1999 forms, failure to give the required Notice within 28 days can prevent the Contractor from obtaining an extension of time or additional payment in connection with the claim. The 2017 forms contain a similar time bar under Sub-Clause 20.2.1, although the 2017 procedure also contains specific provisions dealing with the response to an allegedly late Notice. Always check the Particular Conditions and governing law.

A communication can describe a genuine project problem and still fail as a contractual notice.

For the wider claims procedure, see our guide to FIDIC Clause 20.2 Notices of Claim.

1. Was it recognizable as a Notice of Claim?

This is often the first issue in a retrospective notice review.

Under the 1999 FIDIC forms, Sub-Clause 20.1 requires the Contractor to notify the relevant event or circumstance giving rise to its claim.

In Obrascon Huarte Lain SA v HM Attorney General for Gibraltar [2014] EWHC 1028 (TCC), Akenhead J considered the 1999 Yellow Book and held that no particular form of notice was prescribed, but the communication had to be in writing, describe the relevant event or circumstance and be intended to notify a claim for additional time, payment or both. It had to be recognizable as a claim. The judgment was subsequently appealed in Obrascon [2015] EWCA Civ 712, but the Sub-Clause 20.1 notice holding was not an issue addressed by the Court of Appeal.

That does not create a universal wording test. The executed contract, governing law and facts matter. But it illustrates the practical distinction between reporting a project problem and notifying a contractual claim.

For example:

is not necessarily equivalent to:

The first reports a problem. The second clearly communicates a contractual claim position.

2. Did the notice identify the relevant event or circumstance?

A Notice of Claim does not normally need to contain the fully developed claim.

Under the standard 1999 procedure, the initial notice identifies the event or circumstance giving rise to the claim, with supporting particulars dealt with through the subsequent claims process. Under the 2017 forms, Sub-Clause 20.2 similarly separates the initial Notice of Claim from the later fully detailed Claim.

The practical question at the notice stage is therefore not whether the communication contained the final quantum calculation or complete delay analysis. It is whether it sufficiently identified the event or circumstance being relied on and otherwise complied with the applicable notice requirements.

“Further to ongoing site issues, we reserve all rights” is much weaker than identifying, for example, continued failure to provide access to Area C from a stated date.

3. Was it sent to the right person?

Do not assume that sending something to somebody on the project is enough.

The contract may specify the person to whom Notices must be delivered, the address to be used and the permitted method of transmission.

Under the 2017 Red and Yellow Books, the Engineer performs the agreement and determination role in the claims procedure. The Silver Book has no Engineer. The Employer's Representative performs the equivalent agreement and determination function under Sub-Clause 3.5, although certain steps in the claims procedure, including the initial response under Sub-Clause 20.2.2, operate directly between the Parties.

Example: right issue, wrong recipient

A contractor sends a detailed claim notification to the Employer's project manager, but the contract requires Notices to be delivered to the Engineer at the address stated in the Contract Data.

The substance may be excellent. The service question remains.

4. Was the contractual communication mechanism followed?

This is where an apparently strong notice can fail on administration.

For a 2017 FIDIC contract, check matters such as:

• whether the document was expressly identified as a Notice;
• whether a paper Notice was signed by the appropriate contractual representative, or an electronic Notice was issued through the permitted electronic system by the appropriate representative;
• whether the correct contractual recipient and address were used;
• whether the permitted delivery or electronic transmission method was followed; and
• whether any project-specific requirements were added or altered by the Particular Conditions.

Sub-Clause 1.3 of the standard 2017 forms makes these communication formalities part of the Notice machinery. The 2017 definition of “Notice” also requires a written communication to be identified as a Notice and issued in accordance with Sub-Clause 1.3.

The 1999 forms have no equivalent requirement for the communication to be expressly identified as a “Notice,” but Sub-Clause 1.3 still requires written notice using a permitted transmission method and the applicable contractual address, including any address change notified under that provision.

5. Was it sent in time?

Validity and timing overlap.

Under Sub-Clause 20.2.1 of the standard 2017 forms, the 28-day period runs from when the claiming Party became aware, or should have become aware, of the event or circumstance giving rise to the claim.

That timing exercise can itself be disputed.

The 2017 forms also contain an important initial-response mechanism. Under the Red and Yellow Books, if the Engineer considers the Notice of Claim late, Sub-Clause 20.2.2 requires the Engineer to give a Notice to that effect, with reasons, within 14 days after receiving it. If the Engineer does not do so, the Notice of Claim is deemed valid. The other Party may then notify its disagreement, which is considered through the Sub-Clause 20.2.5 process.

The 2017 Silver Book uses a different administrative structure. If the other Party considers the Notice of Claim late, it must give its response within the 14-day period. If it does not, the Notice of Claim is deemed valid.

Deemed validity should not be confused with establishing the underlying entitlement or quantum of the claim.

If your immediate concern is whether the notice was late rather than whether its content and service were valid, see our guide to the FIDIC 28-day notice rule.

6. Have the Particular Conditions changed the rules?

Never stop at the standard FIDIC wording.

Employers frequently amend notice provisions through the Particular Conditions. Changes can affect recipients, addresses, electronic systems, deadlines, additional information requirements or the consequences of non-compliance.

The executed contract governs.

A notice that would satisfy an unamended standard form may not comply with the contract actually signed.

Can emails, meeting minutes and progress reports count?

This is highly contract- and fact-specific.

Explicit formal notice

A document clearly identified as a Notice of Claim, identifying the relevant event and issued through the required contractual mechanism is the strongest position.

Ambiguous project email

An email explaining that an instruction has caused delay may be evidence that the issue was raised. Whether it is itself contractual notice depends on the contract, its wording, how it was sent and potentially the governing law.

Meeting minutes

Minutes recording that “Contractor reports three-week delay due to late access” may be useful evidence of contemporary knowledge.

That does not automatically make the minutes a Notice of Claim.

Progress reports and programmes

The standard 2017 forms are unusually clear on this point.

Sub-Clause 4.20 expressly provides that nothing stated in a progress report constitutes a Notice under the Conditions.

Sub-Clause 8.3 makes the same separation for programming material. In the 2017 Red Book, it states:

“Nothing in any programme, the Programme or any supporting report shall be taken as, or relieve the Contractor of any obligation to give, a Notice” under the Contract.

The equivalent Yellow and Silver Book wording uses “from” rather than “of.” The 2022 amendments to Sub-Clause 8.3 changed the following paragraph concerning objections to programmes, not this notice sentence.

A delay recorded every month in the programme or progress report may therefore be strong contemporaneous evidence of the underlying event. It does not, by itself, satisfy the separate contractual Notice requirement.

Notice validity checklist

If you are reviewing something already sent, put the communication beside the executed contract and check:

Content: What event or circumstance was identified? Is the communication recognizable as asserting or notifying a claim?

Form: Was it identified as a Notice where required?

Recipient: Did it go to the contractual recipient?

Method: Was the permitted delivery method, address or electronic system used?

Authority: Was it issued by the required person or representative?

Timing: When was the relevant event known, when was the communication sent and what deadline applied?

Response: Under a 2017 form, was any Notice rejecting it as late issued within the applicable 14-day period?

Amendments: Do the Particular Conditions change any of the above?

Do not begin by asking, “Did the Employer know?”

Begin by asking, “What did our contract require, and what exactly did we send?”

This article provides general educational information and is not legal advice. Contract amendments, governing law and the facts of the project can materially affect the position.