Project correspondence: tips for letters, notices and meeting minutes on construction projects

When a construction dispute reaches adjudication, arbitration or court, the outcome often turns on the project correspondence. The letters, emails, notices and minutes written in the heat of the project become the key evidence of what was directed, claimed, agreed and rejected.

Principals and superintendents regularly have to issue directions and responses on the performance of the works, variations, site conditions, nominated subcontractors, substitution of materials, suspension, defects, and the removal or re-execution of work. Contractors, in turn, must give notices to protect their claims. Here are our top tips for getting project correspondence right.

Key takeaways

• Read the contract before you write. Most disputes about notices start with a party that did not know what the contract required.

• Never ignore a claim or notice. Silence rarely helps, and can create real risk.

• Use the contract's own language and procedures. It leaves less room for argument about what was meant.

Drafting correspondence

1. Read and understand the contract

Read the contract, especially the variation, extension of time, payment, notice and dispute clauses. Check the notice clause for how and where notices must be given, and whether email is permitted. Identify what is missing too. A contract without an EOT or delay costs regime creates its own risks.

2. Don't ignore it: respond when required

If you cannot respond fully in time, give an initial response and say when a further detailed response will follow. Parties can agree to extend time.

3. Use the language of the contract

Refer to the clause you are relying on and use its terms, for example "this is a direction under clause 40.1" or "this is a notice of likely delay under clause 35.5". That leaves less room for argument about whether a document was meant to have contractual effect.

4. Be consistent

If you intend to rely on time bars or conditions precedent, make that clear from the start and apply them consistently. Enforcing a time bar on one claim after overlooking it on others invites waiver and estoppel arguments. If you decide not to rely on a requirement in a particular case, say expressly that it is a one-off.

5. Make sure the right person sends it

Contractual notices and assessments must come from the right person, whether the superintendent, the principal or an authorised representative. A direction from a consultant or project manager without authority may not bind anyone, but may still be relied on by the other side. Superintendents should also remember their duty to act honestly and fairly when assessing and certifying.

6. Avoid conflicts

Keep the superintendent's certifying role separate from the principal's commercial and advocacy role, particularly once a dispute or adjudication is on foot.

7. Get expert help when needed

Delay, quantum and defects issues are often technical. Programming, quantity surveying or engineering input at the time can make a response far more robust than an after-the-event reconstruction.

8. Watch for time bars

Time bars do not only apply to contractors. Principals may also have deadlines, for example to assess claims, to respond to notices, or to make their own claims for defects, back charges or liquidated damages.

Recording project meetings

Minutes of site and project meetings are often treated as a contemporaneous record of what was agreed. Directions given in meetings are a common source of later variation and EOT claims. Good minutes should record who attended and their role, note who said what, particularly any direction, request or concern, identify each action, who is responsible and when it is due, and record whether a resolution was reached, or whether the issue remains open.

Circulate minutes promptly and correct any errors in writing. Remember that minutes may not satisfy a contract's formal notice requirements, so a direction or claim raised in a meeting should usually be confirmed by a formal notice.

Write it like a judge may read it

Write every project letter on the assumption that an adjudicator or judge will one day read it. Keep it factual, clear and professional, and make sure it does what the contract requires.

How we can help

Lang Litigation and Construction Law helps principals, superintendents, contractors and subcontractors prepare and respond to contractual notices, claims and directions, and supports clients with contract administration throughout a project. If an important notice or response is due, contact us before you send it.

This article is general information only and is not legal advice. You should seek specific advice about your circumstances.