Conditions precedent & loss and expense: the golden rules for getting paid what you’re owed

In construction, delay and disruption aren’t exceptions, they’re the norm. When the unexpected strikes, loss and expense provisions exist to ensure contractors aren’t left absorbing costs caused by others. But entitlement is never automatic.

All too often, legitimate claims are lost to paperwork, timing, or silence. The culprit? Condition precedents, those contractual gatekeepers that demand precise compliance before a claim can even get off the ground.

This article sets out the golden rules for success, blending practical insight with lessons from case law and our experience to help contractors protect their position and recover what they’re rightfully due.

Know the gatekeepers

Condition precedents are the locks on the door to recovery. The key is a timely, valid notice, without it, the claim goes nowhere.

Tip: At the start of every project, identify what triggers a notice (delay, disruption, access issues, cost increases) and set reminders well ahead of deadlines. Protecting your rights in the moment is far easier than trying to justify them later in a dispute.

Don’t fall for the “they already know” Trap

You might think a notice isn’t needed when the employer can literally see the problem happening on site. Unfortunately, courts don’t agree.

If the contract says “written notice within seven days,” nothing else counts.

In Education 4 Ayrshire v South Ayrshire Council [2009] CSOH 146, the contractor’s claim failed, even though the employer was well aware of the delay, because no compliant notice was served.

Tip: When in doubt, send it out. Informal chats, meeting notes, or casual emails rarely meet the strict contractual test.

Keep notices simple – but precise

A good notice doesn’t need legal flair, it just needs to tick the essentials: identify the event, its timing, and the notifying party. Courts are practical but not forgiving.

Tip: A brief, dated email to the right address beats a perfect letter that arrives late. Compliance matters more than style.

Separate “loss and expense” from “damages”

Loss and expense provisions are contractual recovery mechanisms, not open-ended claims for breach or fairness. They work only if you follow the contract’s exact process.

Unlike a claim for damages at common law, which requires proof of breach, a loss and expense claim is a contractual entitlement triggered by specified events and governed by the contract’s own procedural requirements.

Tip: Always tie your claim to the specific clause. “Fairness” won’t win the argument, compliance will.

Causation is king

Serving notice is just the start. To succeed, you must prove that your additional costs were caused by the relevant event, not by inefficiency, resourcing, or other unrelated factors.

Where causes overlap (known as concurrency), entitlement can be reduced or extinguished altogether. The approach to concurrent delay remains a contested area, and the applicable test may vary depending on the contract and jurisdiction.

Tip: Keep contemporaneous records, daily logs, photos, labour sheets, plant records, and programme updates. Memories fade; paperwork does not.

Keep it real: do not inflate the numbers

Nothing destroys credibility faster than an overstated claim. Employers, adjudicators, and judges are well-practised at identifying inflated figures, and exaggeration can undermine an otherwise strong claim.

Tip: Ground your figures in hard evidence. A modest, data-backed claim will always outperform an ambitious one built on assumption.

Make it a team effort

Winning claims are built by cooperation, not coincidence. Commercial, site, and legal teams need to speak the same language when it comes to notices and record keeping.

Tip: Foster a “notice culture.” Everyone on site should know what triggers a notice and who sends it. A joined-up approach prevents expensive slip-ups later.

The final word

Success in loss and expense claims doesn’t come from shouting loudest, it comes from discipline, documentation, and timing.

Issue notices on time, evidence your costs with precision, and follow the contract to the letter. Entitlement is not about what feels fair, it is about what can be proven.

By mastering these golden rules, contractors don’t just safeguard their rights, they turn disruption into recovery.

Disclaimer: This article provides general guidance only and does not constitute legal advice. Each contract turns on its own terms. If you’re considering a loss and expense claim, our specialist construction team would be delighted to help you protect your position and secure your entitlement.

Need expert legal advice? Contact Sophie Thornley or Warren Kemp for professional support.