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Posted April 1, 2017 | Published in General

Fenwick Elliott Dispatch: serving notices on time

The monthly Fenwick Elliott Dispatch has recently reached its milestone Issue 200, which means that it has been running for over 16 years. Given the ferocious pace of technological change, it will be interesting to see how blogs evolve over the next 16 months, let alone years.

"Given the ferocious pace of technological change, it will be interesting to see how blogs evolve over the next 16 months, let alone years."

In Dispatch we highlight some of the most important legal developments over the past month. In April, we look at good faith, adjudicating and arbitrating under NEC3 and whether or not there had been an unreasonable delay in mediating. We also look at whether or not a pay less notice had been served on time. To give you a flavour of April’s Dispatch, here is a taster of what we say about that final case, a dispute between Kersfield Developments and Bray and Slaughter:

This was an adjudication enforcement case. Amongst other issues, Kersfield said that Bray was not entitled to the £1.1 million awarded because Kersfield had issued a valid pay less notice. This issue raised an important point about the service of any payment notice.

Kersfield’s pay less notice was served by email and post. The email was sent, on time, at 9.50 p.m. on Friday 12 August 2016. A letter was sent on the same day. Clause 1.78.3A of the contract said that a notice may be sent electronically provided a copy was also sent on the same day to the addressee by pre-paid first class post. Any notice so served would take effect on the next Business Day, here 15 August 2016.The pay less notice was due by 14 August 2016.  Mrs Justice O’Farrell noted that the contract allowed the parties the convenience of service by email whilst at the same time providing certainty as to the date on which such notice takes effect. That was “reasonable and sensible”. The pay less notice was therefore late.

To see April’s Dispatch in full, please click here

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Hi Jeremy, this is quite a usefull article. I have a question on managing EWN's. If my contractor gives me an EWN on a delay that is concurrent. For example, if I were to supply a door for a room but the contractor has not yet completed procurement on the Bricks yet. Would the EWN stand for the door? is there a way to call his bluff?
Thank you Vijay. With any notice, there is always a danger in trying to call someone's bluff. It is usually better to keep things simple, measured and act in line with the relevant contract. The EWN is just that, an early warning notice. The contractor is just suggesting that door may cause a delay. It may be too early to determine whether that is correct or not, or whether the delay is concurrent or critical. Regards Jeremy

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