The wording of FIDIC 1999 Sub-Clause 20.1 is unusually blunt. If the Contractor fails to give notice within 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim. Courts and tribunals applying English law have taken that at face value, most recently the Privy Council in January 2026.
What extinguished means
A time-barred claim is not a weak claim. It is not a claim at all, however good the underlying delay. The contractor still bears the delay, still faces liquidated damages for the resulting late completion, and has no contractual route to recover either time or cost for the event. In the 2026 Privy Council case, TT$13.9 million that the Court of Appeal had awarded was lost on this point.
The arguments contractors try, and how they fare
| Argument | Typical outcome under English-law reading |
|---|---|
| The Engineer knew about the delay anyway | Knowledge is not notice. The clause requires a notice describing the event, given by the Contractor. |
| The Employer waived the requirement | Possible in principle, but waiver and estoppel must be pleaded and proved with contemporaneous evidence of representation, reliance, and detriment. The Privy Council rejected an unpleaded waiver argument. |
| The Engineer cannot waive a condition precedent | Generally correct. The Engineer administers the contract and does not have authority to amend it. |
| Termination revived the claim | Rejected. Termination operates prospectively; accrued time-bars remain. |
| The awareness date was later than the Employer says | This is the argument with real content. The clock runs from when the Contractor became aware or should have become aware, which is a factual question. |
| Civil law prevention principles override the clause | Argued in some Gulf jurisdictions; outcomes vary by governing law and forum. Expert advice is essential. |
The awareness argument, properly made
Because the clock runs from awareness rather than occurrence, the one genuinely live argument after a missed deadline is often that awareness came later than assumed. That argument only works if the record shows what the Contractor knew and when. A register that stores the event date and the awareness date separately, with a note explaining the gap, is the difference between a defensible position and a hopeful one.
What to do the day you realise it is late
- Do not backdate anything. A discovered backdated notice ends more than the claim.
- Send a record letter now. Not a notice, which would be late, but a mitigation-oriented letter recording the event, its effect, and the steps being taken. It preserves whatever position remains and supports any awareness or waiver argument.
- Get expert advice before asserting entitlement. Whether a route survives depends on governing law, the amended wording, and the facts.
- Fix the process. The next event is already running its clock.
What this means in practice
- Treat the standard 28 days as the maximum, not the norm; Particular Conditions frequently shorten it.
- Record the awareness date at logging time, with the reason, because it is the only fact still arguable later.
- A missed notice should be labelled as such in the register and drafted around honestly, never hidden.
- The cure is process: deadline tracking that does not depend on one person's memory.
When a notice window has already closed, DraftMyEOT marks the event in red, offers a mitigation record letter instead of a notice, and flags the draft for expert advice rather than pretending.
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This article is general information about how these contract mechanisms typically work. It is not legal advice, and it is not a substitute for review of your specific contract by a qualified professional.