The DIFC Court of Appeal revisits when the time-clock starts to tick under Sub-Clause 20.1 of FIDIC


In order to claim time and/or money under the FIDIC 1999 forms of Contract, there is a requirement to give notice under the first paragraph of Sub-Clause 20.1. The second paragraph of Sub-Clause 20.1 makes it clear that a failure to give notice has the draconian consequence that the Contractor will not be able to proceed with its claim. One would have thought, therefore, that the moment when the time-clock starts to run and hence ends would be clear. 

Mr Justice Akenhead in the Gibraltar tunnel case (Obrascon v HM’s AG for Gibraltar [2014] EWHC 1028 (TCC)) gave his interpretation of when the time-clock starts to run. The DIFC Court of Appeal in the recent case of Panther Real Estate Development LLC v Modern Executive Systems Contracting LLC CA 016/2022 (12 May 2022) disagrees. 

Victoria Tyson, counsel in the Gibraltar Tunnel case will be giving her views on the judgement shortly – watch this space.

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The DIFC Court of Appeal states: "later in his judgment Akenhead J appears to say that time can start to run from the moment, usually later in time, that delay to completion of the works in fact occurred or started to occur. We see difficulties with this analysis."
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