A delay hits your package through no fault of your own. The preceding steel frame isn’t ready, the crane breaks down, or access is blocked by another trade. You flag it to the site agent during a weekly walk-around, assume common sense will prevail, and submit your extension of time application three weeks later.
Then the commercial manager drops the hammer: your entire claim for extra time and site prelims is rejected. Why? Because buried in the Schedule of Amendments was a strict 3-day notice time-bar acting as a “condition precedent.”
How Clause 2.26 Condition Precedent Traps Wipe Out Trade Margin
1. The Technical Clause (JCT DBSub / SBCSub Clause 2.26)
Under standard, unamended JCT forms, Clause 2.26 requires the Subcontractor to give written notice “forthwith” whenever it becomes reasonably apparent that the regular progress of the works is being or is likely to be delayed. Standard forms do not automatically forfeit your claim if notice is served late.
In amended subcontracts, main contractors deliberately insert strict timelines (often 3 to 5 business days) and add the fatal legal phrasing: “Compliance with this clause shall be a condition precedent to any entitlement to an extension of time or loss and expense.”
2. Plain English Translation: The Site Reality
A “condition precedent” means that giving formal written notice within the exact stated window is an absolute legal prerequisite. If you notify them on day four instead of day three, your legal right to claim time is completely dead—even if the main contractor’s project manager watched the delay happen with their own eyes.
3. The Financial Risk: Liquidated Damages Flow-Down
When your delay claim is barred by a missed notice window, two severe financial hits follow immediately:
- Zero Prelims Recovery: You cannot recover your extended labour, rented plant, or site supervision costs for the overrun period.
- Liquidated Damages (LADs): Because you have no valid extension of time, you are technically in breach of your completion date. The main contractor can deduct LADs from your interim account—often running into thousands of pounds per week.
Unamended vs Amended Clause 2.26: Small Print Comparison
| Commercial Aspect | Standard Unamended JCT | Bespoke Main Contractor Trap | Action Required |
|---|---|---|---|
| Notice Window | “Forthwith” upon becoming apparent | Strict 3 to 5 business days from event | Strike out. Extend to 14 business days from awareness. |
| Legal Status | Directory obligation (claim survives) | Strict condition precedent (total forfeiture) | Strike out. Remove all condition precedent wording. |
| Delay Particulars | Submitted as soon as reasonably practicable | Must submit full cost/time impact within 7 days | Amend. Decouple initial notice from detailed quantum submission. |
| Site Team Notice | Accepted in site minutes or emails | Strict service to registered corporate address only | Clarify. Ensure project manager email is valid for service. |
The Ready-to-Negotiate Redline
Before you sign a draft subcontract, search the Schedule of Amendments for “condition precedent” under Clause 2.26. Counter with this redline wording:
“Strike out ‘condition precedent’ and substitute: ‘The Subcontractor shall give written notice of any delay event within 14 business days of becoming reasonably aware of it. Failure to give such notice shall not operate as a condition precedent to the Subcontractor’s entitlement to an extension of time or loss and expense.'”
Audit Your Subcontract Before You Sign
Commercial teams rely on the fact that subcontractors rarely have £1,500 to pay a solicitor to comb through 80 pages of amendments on every tender. I built Trade Contracts Simplified to balance that leverage.
My diagnostic tool scans your draft JCT subcontract in under 2 minutes, flagging condition precedent time-bars, uninsurable design liabilities, and illegal payment clauses with ready-to-negotiate redlines.