Is email a valid contractual notice?

The three tests, and you must pass all of them

Right method: the contract specifies how notices are served. If it says registered post to a named address, an email is not a notice, however convenient. If it permits email, it will usually specify to which address.

Right addressee: the person or office named in the contract. Not the project manager you deal with daily, not the WhatsApp group, not the consultant’s general inbox — unless the contract says so.

Right time: inside the window. Under FIDIC 2017 that window is 28 days from the event or from awareness of it, and it is a genuine time bar.

And under FIDIC 2017, a notice must announce itself

This is the trap that catches competent people. The 2017 edition requires a Notice to identify itself AS a Notice and to state the clause under which it is given.

So an email that describes the delay event in full detail, to exactly the right person, comfortably inside the window, is not a notice — because it does not say it is one. It is a very good email. It will be read out in the arbitration as evidence that you knew, and it will not be a notice.

Actual knowledge does not save you

The instinct is overwhelming and it is wrong: surely, if they obviously knew, the formality cannot matter. The courts have been consistent about this for a very long time, and the reasoning is not perverse — the notice provision exists so both parties know, definitively, that a clock has started and a claim is live. That certainty is the point, and it is destroyed if actual knowledge is a substitute.

Meritorious claims die on this. Not on the facts, not on the merits, but on the channel and the addressee — which is a stupid way to lose money, and it is entirely avoidable by reading the notice clause once, at mobilisation, and building the process around it.

Terms

• Notice