IF A DELAY IS RECORDED IN THE MINUTES OF A SITE MEETING, IS THIS REGARDED AS AN ADEQUATE NOTICE FOR THE PURPOSE OF EXTENDING THE CONSTRUCTION PERIOD?
The JBCC Principal Building Agreement provides in clause 29.0 for the Contractor to serve written delay notices.
Within a limited number of days from when the Contractor becomes aware of a circumstance which in his opinion, could cause a delay to completion, then the Contractor must give notice of his intention to request an extension of time, failing which no extension of time shall be entertained.
Clause 1.5.2 provides that the work "notify" calls for an act to be carried out in writing.
Can this need for an "act in writing" be satisfied by recording the existence of a delay in the minutes of a site meeting?
If a notice is expressly a condition precedent, which is the case with the JBCC agreements, where it states that the right to any extension of time shall depend upon the giving of written notice, the question is often asked as to whether minutes of site meetings constitute good notice.
In the Scottish case of John L Haley Ltd v Dumfries and Galloway Regional Council (1988) the Court had to decide whether site meeting minutes constituted a good notice.
The contract where this matter arose employed a British JCT 63 agreement under which the claimant undertook certain building works to a school with the contract period set at 78 weeks. This was overrun by 31 weeks with a 6-week extension of time granted. When further extensions were refused the matter was referred to arbitration. The claimants argued that they were entitled to an extension of time as the cause of the delay fell within those contemplated by the extension of time clause.
The respondents maintained that the claimants were not entitled to an extension of time as they had not given written notice of the delay as expressly required by the same extension of time clause.
The claimants argued that the fact that the delay had been recorded in the minutes of the regular site meetings fulfilled the need for written notice.
At the respondent's instigation, the Arbitrator stated a case for the opinion of the Court of Session as to whether the minutes constituted a notice as required by the express conditions of contract.
The Court held that the minutes did not constitute good notice. The claimants conceded that a notice was a condition precedent to an entitlement to an extension of time and lost their case.
Whether site meeting minutes constitute a good delay notice will depend upon the precise wording of the contract. It would seem however that where written notice is required to be given, the site meeting minutes will not constitute good notice.
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