An extension of time is tested against records made during the delay

An extension of time is decided after the event, sometimes long after it. The people deciding were not on site, and the people who were on site will remember it differently. What they can all read is what was written down at the time: the notices, the instructions, the programme updates, the diaries and the correspondence.

That makes the records important. It does not make them decisive, and the difference matters to both sides of the contract, because a record can answer some of the questions a claim for time asks and cannot answer others.

A claim for time is three questions

Put simply, a contractor asking for more time has to get three separate things right.

The first is procedure. The Society of Construction Law's Delay and Disruption Protocol observes that most, if not all, standard forms require the contractor to give notice of a delaying event, and that some make the notice a condition precedent to any entitlement.

The second is the contract's allocation of risk. An extension is due only for an event for which the contract permits one, or whose risk it otherwise places on the employer. In the FIDIC forms those include variations, late drawings or instructions, and delay, impediment or prevention attributable to the employer, alongside whatever else the particular contract lists.

The third is effect. The event has to have delayed completion, which is a different thing from having happened, or from having delayed some work.

Money is not one of the three. Where a contractor also claims compensation for the extended period, it has to prove separately that the event caused the cost and how much the cost was. Entitlement to more time does not establish entitlement to money, and the reverse does not follow either.

What the extension itself costs, before anyone argues about who pays

, read: Moving a date is not the same as re-planningMoving a date is not the same as re-planning

Records bear on each of these questions, and on a money claim, in a different way. A dated letter can show that notice was given and when. A record of the event can show what happened and when, which is what the contract's list of events has to be applied to, although whether the event is on that list is a question of the contract. Programmes, their updates and progress records contribute to proving the effect on completion: they show what work was under way and what it was holding up, and none of them shows by itself that completion moved. A cost record contributes to proving what was spent, and which of it the event caused is a further question. No record creates a contractual entitlement on its own, and none proves the whole chain from event to delay to cost by itself.

Notice is the one record the contract names

Under the 1999 FIDIC conditions the notice obligation sits in Sub-Clause 20.1. The High Court in London applied it in Obrascon Huarte Lain v Attorney General for Gibraltar in April 2014, on a tunnel contract let on the 1999 Plant and Design-Build form with relatively minor changes.

The same judgment shows the gap between a record and a notice. The contractor relied, among other things, on its progress reports for November and December 2010, and the December report said that rain had affected the works. The judge held that this was nowhere near a notice under Sub-Clause 20.1. The weather had been exceptional and it had delayed the works, and the six days attributable to it were lost because no timely notice had been given. The contractor had written the event down. It had not claimed for it.

The reason for the clause is stated in another English judgment, and it is a reason about records.

The 2017 FIDIC conditions keep the 28 days and add a second deadline. Gowling WLG's summary of the 2017 Red Book, published in May 2024, describes a Notice of Claim within 28 days of becoming aware of the event and a fully detailed claim within 84 days, under Sub-Clause 20.2.4. The detailed claim must include the contractual or other legal basis for the claim and all the contemporary records the claiming party relies on. On the same summary, a claim whose statement of basis does not arrive in time lapses unless the Engineer fails to give notice of that within 14 days, and either party can now be the claiming party. Under the 1999 edition the fully detailed claim was due within 42 days. The two editions are different contracts, and a project's particular conditions can change either.

A record of an event does not show that it delayed completion

A site diary that records a late drawing, an instruction to stop work or a day lost to rain is evidence that the thing happened. Whether it moved the completion date depends on what else was happening, and that is a question a diary cannot answer on its own.

Proving actual delay means reconstructing the sequence: what was planned, what was done and when, and which chain of activities was governing completion at the time. The SCL Protocol says that the choice of delay analysis method depends, among other things, on the nature, extent and quality of the records and of the programme information available, and that several of the common methods need a logic-linked baseline programme with updates. It also says that the critical path can sometimes be established more reliably from the facts, or from production and resource data, than from scheduling software. Either way, the analysis can only use what somebody recorded.

Who is equipped to test whether an event caused the delay claimed

, read: Engaging an engineer satisfies the standard. Deferring to one does not.Engaging an engineer satisfies the standard. Deferring to one does not.

This is where the programme itself becomes a record. A programme whose activities are not logically linked, or whose updates were not kept, contains dates without the relationships between them, and the dates alone cannot show which delay drove completion. A programme can also leave out the owner's own activities altogether, and then an owner's delay has no path to completion in the model at all.

Why an owner's late approval can be invisible on the critical path

, read: The critical path cannot show a delay nobody scheduledThe critical path cannot show a delay nobody scheduled

Both parties are writing the evidence

The burdens in a time claim fall on both sides, at different points. Gowling's summary puts the burden of proving entitlement on the contractor, by way of contemporaneous documentation. Obrascon put the burden of proving that a notice was late on the employer. An owner who wants to resist a claim, or to show that its own instructions did not drive the delay, is relying on records too.

Why the weight falls on documents is explained in English commercial litigation. In Gestmin v Credit Suisse in 2013, Leggatt J wrote that memory is less reliable than people believe, and that in a commercial case the best approach is to place little reliance on witnesses' recollections of meetings and conversations and to base findings on inferences from the documents and from known or probable facts. The Court of Appeal later limited how far that goes. In Kogan v Martin in 2019 it held that Gestmin lays down no general principle for assessing evidence, noted that the observations were addressed to commercial cases, and said that findings must still be made on all the evidence. Documents weigh heavily where they exist. They do not decide a case alone.

What the prevention principle does, and where it stops

The prevention principle is often described as the contractor's answer to a missed deadline caused by the employer. In English law it is narrower than that.

It also depends on the same proof of actual delay that an extension does, as Adyard held. And it does not clearly rescue a contractor who failed to give a notice the contract required.

All of that is English law, and the Protocol states that it focuses on the UK market and English law and gives way to the contract and the governing law. Elsewhere the position can differ. Gowling's summary suggests that the good faith provisions of civil codes, among them Article 246(1) of the UAE Civil Code, may allow a tribunal not to enforce a time bar strictly where the employer knew of the event and suffered no substantial harm from the late notice. That is a law firm's reading of possible arguments, and it is not presented as settled law. Neither the sources read here nor this article says anything about Saudi law on the point.

What to examine while the event is happening

These questions are for the owner's team and the contractor's alike, because each side's position is being written at the same time.

• When an event that may delay the works occurs, which document records it, who wrote it, and would a reader who was not there recognise it as a notice under the contract, or only as a description?
• Is the contract's notice period running from the event, or from when the delay became apparent, and has anyone written down which reading the team is relying on?
• Can each delay event be matched to the programme activities it affected, in the programme update closest to the date it occurred?
• Are the programme updates logic-linked and kept in their native form, so that somebody can later reconstruct which chain of activities was driving completion?
• Is every oral instruction confirmed in writing with its date, and does the owner keep its own record of instructions, approvals, access and information it issued?
• Are daily and progress records factual, and signed by both parties where that is practicable?
• Does the contract provide an extension of time for each kind of act or omission by the owner, and does it say anything about concurrent delay?

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Sources. Obrascon Huarte Lain SA v Her Majesty's Attorney General for Gibraltar [2014] EWHC 1028 (TCC), 16 April 2014, paragraphs 11, 17 and 311 to 316, for the contract form, Sub-Clause 20.1 as the judgment quotes it, its construction as a condition precedent, and the progress report held not to be a notice. Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2) [2007] EWHC 447 (TCC), 6 March 2007, paragraphs 47 to 49, 56 and 97 to 105, for the prevention principle, its three propositions, the purpose of notice and the Australian cases as the judgment reports them. North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744, 30 July 2018, paragraphs 12, 28, 30, 36 and 38. Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 (Comm), 11 April 2011, paragraphs 264, 282 and 292. Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), paragraphs 16 and 22, and Kogan v Martin [2019] EWCA Civ 1645, paragraphs 88 and 89. All six are read at The National Archives' Find Case Law. Society of Construction Law, Delay and Disruption Protocol, 2nd edition, February 2017, free to download, Introduction B and I, Core Principles 4, 5 and 12, and Guidance Part B paragraphs 1.7, 1.9, 1.12, 1.32 and 11.3 to 11.6. Mike Stewart and Mary Lindsay of Gowling WLG, FIDIC: Claims for time under the 1999 / 2017 Red Book, 23 May 2024, for the 2017 claim procedure, the burden of proof under Sub-Clause 8.4 and 8.5, and the civil code provisions on good faith; the 2017 conditions themselves are not quoted here. Law firm commentary is attributed rather than treated as primary, and the position under any particular contract and governing law should be confirmed for that contract.