Jurisdiction(s):
United Kingdom

FES v HFD: Clause 4.21 notice is a condition precedent to loss and expense under Scottish SBC, with likely implications across JCT 2016 forms

Published on: 12 March 2024

Published by a LexisNexis Construction expert

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Article summary

FES Ltd v HFD Construction Group Ltd [2024] CSOH 20 What are the practical implications of this case?

This decision establishes that, under the Scottish SBC conditions, a contractor’s right to recover direct loss and expense stemming from a Relevant Matter (RM) depends upon notifying the Architect/Contract Administrator of the RM promptly, once its probable impact becomes reasonably evident. Put differently, service of such notice is a precondition to the contractor’s entitlement. Timely notice is therefore essential to secure any entitlement. The court regarded this result as unavoidable, given the plain text of the operative clauses, and as consonant with commercial common sense. Parties working with contracts founded on the Scottish SBC should, accordingly, implement measures to secure compliance with these requirements. Conversely, those who would prefer that recovery of loss and expense is not made contingent upon the issue of a notice ought to consider revising the standard-form wording. It should also be noted that the Scottish SBC terms are derived from the Joints Contracts Tribunal (JCT) Standard Building Contract 2016 (the JCT SBC)...

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