What happens when an EWN has been raised by a contractor but failed to follow it up with an NCE and the client has also failed to issue an NCE and the even has occured. How dose the Time Barr clause work in this instance.
An early warning is a notice of something that MIGHT affect the project in terms of time/cost/quality. The aim of the early warning is a chance to mitigate the situation to some degree to provide efficiencies or to save cost.
A notification of a compensation event is required when it is now know that there WILL be an affect on time/cost/quality and is not something that is the Contractors risk under the contract. There is an obligation to notify that event by the Contractor within 8 weeks of becoming aware of the event. However, of the 19 reasons listed within clause 60.1 the Contractor is only obliged to notify 12 of them, the Project Mananger is obliged to notify the other 7 (see guidance notes for 60.1 as to which the PM is obliged to notify).
In your specific example it depends who is obliged to have notified it. It is not much of a defense from the Contractor to say “well you knew about it anyway” to the PM and indeed the contract is quite clear on who’s obligation it is and what the specific remedy is. Whether an early warning has been raised or not and by whom is irrelevant at this point in time. The time bar is there to encourage Contractor’s to get issues on the table as they occur so both Parties know where they stand in terms of additional works not perceived to be in the original scope or risk profile. Otherwise, you will get what happens under other contracts were there is a bun fight at the end of the project as to what was additional and what is not. The NEC3 contracts are trying to be proactive in understanding change and commercial liability as you go through a project
Fully endorsing everything that Glenn says but with two, small, additional points to bear in mind.
First, a notification of compensation event should still be given if there is an expectation that it will occur. Glenn’s distinction between MIGHT and WILL is a very sensible practical test and distinction and definitely the right starting point but the WILL is not quite absolute 100% guaranteed just an expectation.
The second small point is that the NEC does not specify a form for either the EWN or NCE. I have seen it argued that because of this an EWN can, in fact, be an NCE as well. That is possible, depending on the wording of the document used BUT you would also have to bear in mind clause 13.7 which provides that a notification must be given separately to any other communication. So probably, and I think a better interpretation, is that a notification cannot perform a dual service (see Northern Ireland Housing -v- Healthy Buildings which makes the same point in relation to instructions and notifications). You would need to look at the wording and the circumstances in which it was given to work out if it was truly an EWN or an NCE (often not as simple as it may sound).
Either way, neither an EWN nor a NCE is a bad thing and therefore no party should be concerned about issuing them at the earliest possible opportunity.