JCT vs NEC: which notices are conditions precedent?
Under NEC, the eight-week rule at clause 61.3 is a genuine bar: notify late and the compensation event is lost, whatever the merits. Under standard JCT, the delay notice is a notification duty rather than a condition precedent, so serving late is untidy but rarely fatal. The expensive case is amended JCT, which frequently imports a condition precedent the standard form does not contain.
That third row is where most of the money goes, because everyone assumes they are on the second.
What is the actual difference between the three?
| Standard JCT | NEC | Amended JCT | |
|---|---|---|---|
| Late notice loses the entitlement | Usually no | Yes | Depends entirely on the amendment |
| The clock most people watch | Delay notice on becoming aware | Eight weeks from becoming aware (cl. 61.3) | Whatever the schedule of amendments says |
| Where you find the answer | The printed form | The printed form | Page 40-something of a document nobody read |
| Common assumption | Correct | Correct, and widely respected | Wrong, and only discovered when it matters |
| Practical risk level | Moderate | High but visible | High and invisible |
The last row is the point. NEC's bar is severe but everybody knows about it, so NEC projects tend to run disciplined early warning and compensation event processes precisely because the consequence is understood. An amended JCT carries a comparable risk with none of the accompanying culture.
Why is amended JCT the dangerous one?
Because the amendment is invisible in daily use and the assumption it breaks is the one everybody carries.
A schedule of amendments is standard practice on any project of size. It arrives with the tender, it is long, it is read properly once by whoever priced the risk, and thereafter the team works from habit and from what the standard form says. The habit is the problem: the standard-form habit is that a late notice is recoverable.
If the amendment made notice a condition precedent, that habit is now a mechanism for losing entitlement, and nothing in the daily rhythm of the job will tell you.
The Society of Construction Law Delay and Disruption Protocol approaches this from the records side: transparency of records, clear methodology and structured information are central to preventing disputes as well as resolving them. RICS standards on contract administration make the parallel point that administration must be contemporaneous rather than reconstructed.
What should you actually check, and when?
Three questions, answered once at contract award, written down where the delivery team will see them.
- Is any notice provision expressed as a condition precedent? Look for the entitlement being conditioned on the notice, not merely required alongside it. The wording to hunt for is the kind that says the contractor shall have no entitlement unless notice is given within a stated period.
- What is the period, and when does it start? "Within 14 days" is meaningless without knowing 14 days from what. Becoming aware, the event occurring, and the effect becoming apparent are three different trigger points and they can be weeks apart.
- Who is the notice served on, and how? A valid notice served on the wrong person, or by the wrong route, is not a notice. Amendments frequently tighten this.
Write the answers on one side of paper and give it to the people who will actually be doing the noticing. That single sheet is worth more than the contract itself to a site team, because nobody is reading a 200 page document during a bad week.
Where do these actually get missed?
Not in the drafting. In the gap between a conversation and a document.
The pattern is consistent: the issue is raised verbally in a progress meeting, everybody in the room understands there is a problem, and no notice is served because it felt like it had been communicated. Weeks later the clock has run. This is exactly the mechanism behind an instruction issued "to be agreed", where the cost gets chased and the time quietly does not.
The other reliable failure is the trigger date. Under a condition precedent, when you became aware is the fact that decides everything, and it is precisely the fact that is hardest to evidence after the event. If the first written record is the notice itself, the other side will argue awareness began earlier, and a reconstructed account will not beat a contemporaneous one.
What does a system that catches this look like?
Something that turns awareness into a dated record without anybody deciding to do so.
The commercial value is not the drafting of the notice. Anybody competent can draft one. The value is knowing, on the day, that a clock has started, and having the evidence of when it started. That means the site record has to be captured as it happens rather than assembled when someone thinks to look.
Get that right and the contract form matters much less, because you are inside every period whether it is a duty or a bar. Get it wrong and the amended JCT will find you eventually.