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Construction contracts are often associated with disputed claims for payment. This is not always a matter of what is fair; rather it usually boils down to contractual entitlements.

Parties need to consider whether there is a contractual entitlement to a claim and whether any necessary prerequisites have been followed. If the provision is drafted clearly enough, it may even expressly state to be or be regarded as a condition precedent. This usually amounts to an action or event that must occur before a party’s obligations under a contract come into force. The commercial consequences can be serious as, even if a party has done nothing wrong, if it has failed to follow the contract then its claim may not be enforceable. 

In the recent case of Disclosure and Barring Service vs Tata Consultancy Services Ltd [2025] EWCA Civ 380, the Court of Appeal unanimously dismissed an appeal by the Disclosure and Barring Service (DBS)  concerning the interpretation of clause 6.1 of an IT modernisation agreement. The court upheld that the clause created a condition precedent requiring DBS to issue a non-conformance report (NCR) before it could claim delay payments.

While this is not a construction contract, the interpretation of the provisions should provide useful guidance, as similar provisions are used widely in the sector.

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