Tersons Ltd -v- Stevenage Corporation (1963) 5BLR 54 CA   © Daniel Atkinson 1999

In Tersons Ltd -v- Stevenage Development Corporation (1963) 5BLR 54 CA there was a dispute whether the drawing issued by the Engineer was an ordered variation or simply an instruction as to the method of carrying out the works already ordered. It was decided that it was a variation, so the issue arose whether the Contractor had complied with the notice provisions in Clause 52(2) of the ICE 2nd Edition.

It was held that it was sufficient if the notice was in general terms, that where an instruction as to carrying out work includes an order to perform additional work, it is sufficient for the contractor to identify the order, and to make plain that the order is regarded as involving a claim for extra or additional work for which extra payment will be claimed.

On the question of the timing of the notice the Court considered that the Contractor had to be given a reasonable time in which to make up their mind to claim. All the relevant circumstances had to be considered, and one of the circumstances was that it was not easy to determine whether the Engineer`s orders contained in the drawing, did or did not involve additional work. The timing of the notice was a mixed question of law and fact.

On the question of the effect of failure to give proper notice the Court effectively held that the giving of notice was a condition precedent to the entitlement to have the rate fixed by the Engineer.