Being right is not enough
Contracts often make a remedy conditional on a step you must take first: serve a notice, issue a report, raise a claim within a window. Where the step is a condition precedent, the remedy is simply not available until - and unless - you take it. You can be entirely right about the breach and still recover nothing if you skipped the step.
These provisions look procedural, which is exactly why they are dangerous. The substance is real: no step, no claim.
TCS v DBS: the report that was never filed
In the TCS v DBS dispute, the contract said that if delivered software failed to meet the acceptance criteria, the customer had to issue a Non-Conformance Report before it could claim delay damages. The customer believed the software was seriously defective - but it never issued a single Non-Conformance Report, treating the requirement as a technicality.
It was not a technicality. In Tata Consultancy Services Ltd v Disclosure and Barring Service [2024] EWHC 1185 (TCC), and on appeal in Disclosure and Barring Service v Tata Consultancy Services Ltd [2025] EWCA Civ 380, the courts held the report was a condition precedent to the delay remedy. With no report served, the customer could not recover delay damages for the relevant period - a claim worth around GBP 1.6 million failed on the missing paperwork.
Why "if...then" creates a gateway
The Court of Appeal's reasoning was almost grammatical: almost any sentence beginning with "if" is conditional, and the part beginning with "then" is not reached until the "if" condition is satisfied. A clause that says if the work fails, then the customer shall issue a report, and then may claim, builds the report into the path to the remedy.
So the structure of the clause, not its label, decides the point. "If...then" wording around a remedy should be read as a sequence you must actually follow.
These gateways are common
Notice and report conditions precedent are everywhere: time-barred claim notices, defect or non-conformance reports, delay or extension-of-time notices, indemnity-claim notification windows, and "notify within X days" provisions. Each can convert a good claim into no claim if the step or the deadline is missed.
They cut both ways. The same wording that can defeat your claim can defeat the other side's, so it is worth knowing where the gateways sit on both sides of the contract.
How to protect your remedies
First, find the conditions precedent before you need them: map every notice, report, and deadline that gates a remedy, and build them into your contract-management process. Second, when an issue arises, serve the required notice or report promptly and in the specified form, even if it feels like a formality. Third, in drafting, make sure the steps you can realistically meet are the ones tied to your remedies, and resist conditions precedent that are impractical to satisfy.
In review, the highest-value catch is a remedy quietly made conditional on a notice or report - an inserted "provided that" or "if...then" that turns an unconditional right into one you can forfeit by inaction.
Use at the desk
Practical checklist
- Identify every notice, report, or deadline that is a condition precedent to a remedy before you need it.
- Treat "if...then" wording around a remedy as a sequence you must follow, not a formality (TCS v DBS [2024] EWHC 1185 (TCC); [2025] EWCA Civ 380).
- When an issue arises, serve the required notice or report promptly and in the specified form.
- Build claim deadlines and notice requirements into your contract-management process.
- When drafting, avoid agreeing to conditions precedent you cannot realistically satisfy.
- In review, flag any remedy newly made conditional on a notice or report - it can be forfeited by inaction.
This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.
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