The notice that was never given under Sub-Clause 20.2

Keywords FIDIC 2017; Sub-Clause 20.2; Notice of Claim; time bar; extension of time; SCL Delay and Disruption Protocol

1. The provision

Sub-Clause 20.2.1 of the 2017 Red Book requires a party that considers itself entitled to additional payment or an extension of time to give a Notice of Claim to the Engineer within 28 days of becoming aware, or of when it should have become aware, of the event or circumstance. Sub-Clause 20.2.2 provides that where the Notice is not given within that period, the claiming party is not entitled to the extension or the additional payment and the other party is discharged from liability.

The 2017 form sharpened what the 1999 form already contained. Under the 1999 Red Book the consequence of a late notice was the same, but the Engineer had no express discretion to relieve it. Sub-Clause 20.2.5 of the 2017 form now permits the Engineer, and on referral the Dispute Avoidance/Adjudication Board, to take account of the circumstances of a late Notice, including whether the other party was prejudiced and whether it had reason to know of the claim in any event. The discretion exists, but a claiming party that has to rely on it has already given up the certainty a timely Notice would have secured.

2. What a Notice is, and what it is not

A Notice of Claim is short. It identifies the event or circumstance, states that the party considers itself entitled to additional payment or an extension of time, and is given to the Engineer in the form and manner the contract prescribes for Notices under Sub-Clause 1.3. It need not quantify the claim; the detailed claim follows under Sub-Clause 20.2.4.

Documents that merely record the problem are not Notices. A monthly progress report that mentions a delay, a minute that records a complaint, a site instruction that acknowledges a change, or a letter asking the Engineer to confirm a variation, are each evidence that the contractor was aware of the event. None of them is a Notice of Claim, and each of them will be read against the contractor as fixing the date from which the 28 days run.

3. Counting from the record

On a live project the difficulty is rarely ignorance of the rule. Awareness is a question of fact, and the fact sits in correspondence, instructions and minutes written for other purposes by people who were not thinking about Sub-Clause 20.2. By the time the claim is prepared, the date of awareness is reconstructed from memory, and the date remembered is usually the later one.

The method we apply is to read the project record into a dated chronology as it is produced, with each entry tagged to the event it evidences and to the contractual provision it engages. The chronology then shows, for each event, the earliest document that evidences awareness and the Notice deadline that document starts. The Society of Construction Law Delay and Disruption Protocol (2nd edition, 2017) makes the same point from the other direction: contemporaneous records are the foundation of any delay analysis, and a claim that cannot show when its author knew of the event will struggle under any of the Protocol's methods.

4. Conclusion

Of all the steps in a FIDIC claim, the Notice of Claim takes the least effort and is missed the most often. A claiming party that keeps a dated chronology of its own records, and gives a short Notice whenever that chronology shows an event that may carry time or money, will rarely need Sub-Clause 20.2.5 and will arrive at the detailed claim with its entitlement intact.

References

1. FIDIC, Conditions of Contract for Construction (Red Book), 2nd edition, 2017, Sub-Clauses 1.3, 20.2.1, 20.2.2, 20.2.4 and 20.2.5.
2. FIDIC, Conditions of Contract for Construction (Red Book), 1st edition, 1999, Sub-Clause 20.1.
3. Society of Construction Law, Delay and Disruption Protocol, 2nd edition, February 2017.

Cite as: Hove & Quill Construction Practice, 'The notice that was never given under Sub-Clause 20.2' (Hove & Quill, 15 July 2025).