Notice of delay
With a notice of delay, site management records towards a contractor that a date has been exceeded or foreseeably will be. It is not a spontaneous means of pressure, but the result of a prior review – and its purpose is not escalation, but a return to the agreed sequence.
The three conditions
In practice, a notice of delay is usually regarded as sound only when three points are met together:
- A binding date has been agreed – from the works contract or an approved schedule programme.
- There is an objectively verifiable deviation between the intended and the actual state.
- No recognised impediment justifies the delay.
If one of these is missing, the notice has no effect. The third is often skipped: where an impediment is justified, the contractor is not in default – the question of an extension of time then has to be settled first.
The contractual basis
Where SIA standard 118 forms part of the contract, its articles 92 to 96 govern deadlines and default: from agreeing the deadlines, through the contractor’s duty to meet them, to the client’s rights once default has occurred. Article 94 is the one that matters in practice – where a fixed deadline has been agreed, default occurs when it passes, without any reminder being required. Where a contractual penalty has been agreed, it is governed by the Code of Obligations.
What carries the evidence
A subjective impression on the part of site management is not enough. The delay has to be substantiated traceably – usually through site minutes, photographic records, the site diary and the updated schedule. An oral notice is hard to prove later, and schedule and defect matters are handled separately because their consequences differ.
A comparison of intended and actual state is only possible if the original state has been preserved. In Menira, save the approved schedule as a dated backup file and as a print-ready PDF before you update the running plan – then the planned date does not have to be reconstructed after the fact.
This article sets out common practice and does not replace legal advice in an individual case.