Uniform Building Contractors Ltd v The Water and Sewerage Authority of Trinidad and Tobago (Trinidad and Tobago) [2026] UKPC 2

Judicial consideration of disputes arising under the FIDIC suite of contracts is relatively rare.

Introduction

The Privy Council has recently handed down its judgment on Uniform Building Contractors Ltd v The Water and Sewerage Authority of Trinidad and Tobago (Trinidad and Tobago) [2026] UKPC 2. This is an appeal from the Court of Appeal in Trinidad and Tobago. The Privy Council is the court of final appeal for many commonwealth countries as well as UK’s overseas territories. While its decisions are not strictly binding on the courts of England and Wales, its judgments are regarded as highly persuasive.

This case concerned the FIDIC Yellow Book (1999 Edition), notice requirements and waiver/estoppel. These are some of the recurring themes particularly for contractors looking to advance claims under the FIDIC suite of contracts.

Background

Uniform Building Contractors Limited (“UBC”) and the Water and Sewage Authority of Trinidad and Tobago (“WASA”) entered into a contract on 23 May 2007 for UBC to design, supply and install a total of 28.43km of pipeline from Rio Claro to Mayaro (“Contract”).

Disputes arose between the parties and the two packages of the Contract were subject to termination notices from WASA to UBC. This led to UBC commencing proceedings against WASA in May 2013, and WASA counterclaimed.

The trial judge dismissed both UBC’s claim and WASA’s counterclaim. UBC appealed the trial judge’s decision but WASA did not appeal the dismissal of the counterclaim. Following the appeal, the Court of Appeal allowed the appeal in the sum of TT$13,915,215.46 together with interest and costs.

Issues in Dispute

The main issue before the Court of Appeal and the Privy Council arose from four items of work which UBC argued were variations which entitled them to additional payment. WASA disagreed, and argued that even if they were, UBC failed to comply with the procedural requirements of the Contract.

As this case was appealed twice, we will briefly set out the decisions of the lower courts before focusing on the Privy Council’s view.

The trial judge’s decision

The trial judge dismissed the claim in its entirety, rejecting that the four items were variations and therefore that UBC is entitled to additional payment because UBC had failed to comply with the contractual requirements.

Court of Appeal decision

The Court of Appeal overturned the trial judge’s decision. Among other things, the Court of Appeal treated the site engineer’s approval of the four items as either varying the works or waiving strict compliance with the contractual requirements.

They found that, it was clear that “although the parties signed the agreement with the FIDIC terms incorporated, the management of the contract demonstrated some flexibility in its day to day operation.” For this reason, they considered that it was not appropriate to return to the strict literalist approach.

Further, they found that there was strong evidence that the changes made were in fact variations. Among other things, the Court of Appeal considered that WASA’s site engineer’s approval of the items as variations was crucial.  

They also found that the site engineer had waived the contractual requirements because WASA was given notice of the change and no objection was raised but in fact approval was given by the site engineer. It would therefore be fundamentally unfair for WASA to dispute these additional payments.

Privy Council

The Privy Council identified three particular difficulties with the Court of Appeal’s approach:

(a)    First, although they concluded that the four items were variations, they did not refer to the terms of the Contract itself. 

(b)    Secondly, the Court of Appeal’s conclusion that, on the one hand, the Engineer’s conduct did not amount to an amendment of the Contract (which he was prohibited from agreeing) but that, on the other, that same conduct waived the relevant contractual requirements, fails to give full effect to the terms of the Contract and is contradictory. 

(c)    Thirdly, there are problems arising out of the Court of Appeal’s approach to the issue of waiver and estoppel (or what they called “fairness”), an issue which had neither been pleaded, nor addressed in the evidence, nor raised in any form before the trial judge.

Notice under clause 20.1

Relevant provisions under the FIDIC Contract

The Privy Council considered clauses 13.1, 13.2, 13.3, 3.5, 3.6, and 20.1.  The most critical of these was clause 20.1 (not materially amended from the standard form), which provided:

“If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any Clause of these conditions or otherwise in connection with the Contract, the Contractor shall give notice to the Engineer, describing the event or circumstances giving rise to the claim. The notice shall be given as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware of the events or circumstances.

If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim. Otherwise, the following provisions of this Sub-Clause shall apply…

The requirements of the Sub-Clause are in addition to those of any other sub-clause which may apply to a claim. If the Contractor fails to comply with this or another Sub-Clause in relation to any claim, any extension of time and/or additional payment shall take account of the extent (if any) to which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is excluded under the second paragraph of this Sub-Clause.”

This is a key FIDIC clause in the 1999 Yellow Book and this was not amended.  Regardless of amendments, the provisions of clause 20.1 are often the source of many disputes between parties to a FIDIC contract

Application in this case

The Privy Council considered that clause 20.1 was a condition precedent to any entitlement to additional time or money.  This means that the contractor must comply with the procedural requirements in clause 20.1 before any entitlement to additional time or money under the clause can succeed. If they are not followed correctly, the claim will fail.

Waiver, estoppel and fairness

Where a contractor fails to comply with the procedural requirements of a contract, it is not uncommon for them to argue that it would be unfair or inequitable for the employer to have the benefit of additional works without paying for them. This is based on principles of waiver or estoppel which was referred to in the Court of Appeal decision as fairness. However, the Privy Council clarified that these concepts would not be applicable to the present case.

Waiver and estoppel never formed part of the issues before the trial judge, and there was no evidence to support such a claim. 

It was also observed that the site engineer who allegedly waived the contractual requirement, as stated in the Court of Appeal decision, did not have the authority to do so. Any valid waiver should come from a person who has the authority to amend the contract or from someone (such as a site engineer) whose specified authority has been approved by the employer.

Key takeaway

The key takeaway from the Privy Council’s decision in this case is that the Courts will treat clause 20.1 of the FIDIC Yellow Book (and other similarly drafted clauses across the FIDIC suite) as sufficient to amount to a condition precedent. Since clause 20.1 was not materially amended, the Privy Council’s analysis carries particular importance.

Contractors must, therefore, be careful to ensure that notice requirements are complied with, particularly where they are a condition precedent, and should not rely on retrospectively being able to establish that there has been a waiver or that an estoppel has arisen due to the Employer’s conduct. Any reliance on waiver or estoppel must be specifically pleaded at an early stage of the case and supported with evidence.