The intention is not so much to move the goalposts here, but to seek to fix the goalposts at a sensible place, since the current reality is that courts, adjudicators and arbitrators use a wide variety of techniques to avoid the inequitable application of Queen of Hearts clauses if they possibly can.
In my book Extra-Contractual Recoveries (still not finished!) I attempt to list the many weapons available in the arsenal of circumvention:
In these circumstances, it is unsurprising that courts have been prepared to draw from a fairly wide arsenal of arguments in order to relieve a contractor from the harsh consequences of failing to give a required notice, and the following principles have in the past been applied:
- That the giving of notice is not a condition precedent, such that a failure to give notice does not deprive the contractor the right to the relief in question, but merely renders him liable for the damages (if any) which flow from lateness of the notice[1];
- That a requirement may not be a condition precedent, even if expressly stated to be so, if that result would be a commercial nonsense[2];
- That the notice is to be read contra proferentem, or otherwise read down[3];
- That the requirement for notice may not be relied on unless it has been expressly pleaded[4];
- That the requirements for notice may be loosely construed, such that even documents such as daywork sheets may satisfy the notice requirements[5];
- That the notice requirement applies only to the contractual entitlement, and not to any parallel entitlement by way of damages[6];
- The Doug Jones Principle[7];
- That the effect of absence of notice may be to set time at large[8];
- That the owner who has prevented compliance with the clause may not rely on it[9];
- That the requirement to give notice may have been waived, or negatived by an estoppel;
- That, where the notice required by the contract is in the nature of an arbitration notice, the time for such notice may be extended by the court[10].
In addition, it has been suggested that further avenues to the same effect might, in some circumstances, be available:
- That the notice provision is penal[11];
- That the notice provision might be construed as a forfeiture clause, such that the courts are empowered to grant relief from forfeiture[12];
- That reliance of the notice provision by the owner is unconscionable;
- That the notice provision forms part of a contractual mechanism that has broken down;
- That the contractual provision is insufficiently clear as to the nature of the notice that is required;[13]
- That the notice provision offends against a statutory control of unfair contract clauses;
- That, in the context of an East Coast Model adjudication, the notice provision is a mechanism which falls to be ignored for the purpose of ascertaining the statutory entitlement to payment;
- That the owner has prevented compliance with the provision[14];
- That the provision is tantamount to an arbitration time limits may be extended pursuant to some statutory power;
- That the provision is unconstitutional[15].
In theory, such an arsenal would still be available if a statutory benchmark were to be established. But in practice, it seems overwhelmingly likely that courts, arbitrators and adjudicators would look to and apply a statutory benchmark rather than this somewhat irregular pile of weapons.
The indicative draft clause that is presently up for discussion is in the following form:
(1) A provision in a Construction Contract which purports to make a right to claim or receive payment, or a right to claim or receive an extension of time, conditional upon the provision of any notice shall be of no effect if and insofar as
(a) Compliance with the requirements of the provision would not be reasonably possible or would be unreasonably onerous, or
(b) The requirements of the provision are not reasonably justifiable by any legitimate commercial purpose
(2) For the purpose, “notice” includes any notice, claim for payment, narrative or calculation as to actual or estimated time or money.
(3) The failure of any provision or part of a provision to satisfy the requirement of reasonableness at subsection (1)(a) of this section in relation to a right or claim to money and/or time shall not of itself render that provision ineffective for the purpose of any right or claim to other time and/or money.
It may very well be that discussion will lead to an improvement of that wording. The key question, of course, is not whether a statutory benchmark like this would be free from difficulty, but rather whether it would be preferable to the present free-for-all.
SoCLA’s flyer for the event is thus:
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[1] See page 123 et seq below.
[2] Koch Hightex GmbH v New Millennium Experience Company Limited; see page ~ below.
[3] See the discussion of Tersons v Stevenage at page ~ below.
[4] See Blissgrange v John McGregor (Contractors) 1987 GWD 19-707 at ~.
[5] See the discussion of Henry Boot Construction v D F Mooney at ~
[6] See the discussion of Decor v Cox at page ~ below
[7] See the discussion of Abigroup v Peninsular Balmain at ~
[8] Gaymark Investments Pty Ltd v Walter Construction Group Ltd (1999) NTSC 143; see the discission of this often criticised case at page on page 161 below.
[9] See Koch Hightex GmbH v New Millennium Experience Company Limited (1999) CILL 1595. Note also this passage from Keating at 8-030:
There are, however, conceptual difficulties, it is submitted, where the event causing delay has been caused by the employer’s default, for example a failure on the part of the employer to give possession, or by the default of the employer’s agent, for example a failure by the architect to supply drawings in time. In such a case the employer would, if it were able to recover liquidated damages in relation to that delay, benefit from its act of prevention.
[10] See the discussion of McLaughlin & Harvey plc v P & O Developments Ltd (1992) 55 BLR 101, CILL 677 at ~
[11] See page 113 below.
[12] See page 131 below.
[13] See page 126 below.
[14] Bremer Handelsgesellschaft mbH v. Vanden Avenne Izegem PVBA [1978] 2 Lloyd’s Rep 109 at 113, 130 (HL).
[15] See the discussion of Barkhuizen v Napier at page 133 below.