Procedure can defeat the claim
Indemnities usually carry notice requirements: the indemnified party must tell the indemnifier of a claim, often within a time limit and to a required level of detail. Where notice is a condition precedent, getting it wrong does not just weaken the claim - it removes it. The substance can be unanswerable and the indemnity still fail on the procedure.
So notice provisions deserve as much attention as the indemnity itself - they are where good claims are lost.
Towergate: a dual condition precedent
Towergate Financial (Group) Ltd v Hopkinson [2020] EWHC 984 (Comm) shows how. The indemnity required notice "as soon as possible" and in any event before a long-stop (the seventh anniversary). Cockerill J held this created a dual condition precedent: notice had to be both as soon as possible and within the long-stop. The buyer had served notice before the long-stop, but not as soon as possible - it waited well over a year after notifying its insurers - and the entire indemnity claim failed.
The trigger for the duty was low: it arose once the claimant knew of any matter that it, or a reasonable person, would know might give rise to a claim. If you have told your insurers of a potential claim, that is a strong sign you should have told the indemnifier at the same time or earlier.
Dodika: content, judged by the recipient's knowledge
Notice provisions have content requirements as well as timing. In Dodika Ltd v United Luck Group Holdings Ltd [2021] EWCA Civ 638, a notice had to give "reasonable detail" of the matter giving rise to the claim. The Court of Appeal held the notice was valid: reasonable detail is assessed against what the recipient already knew and the commercial context, and the recipient here understood exactly which matter - a known tax investigation - was referred to.
The lesson is not that detail is optional - it is that reasonable detail is contextual. Do not rely on the recipient's knowledge to fill gaps; but equally, a notice is not invalid merely because it is brief, if the recipient can tell precisely what it concerns.
Condition precedent or not: Heritage Oil
Whether breach of a notice provision destroys the claim or merely sounds in damages depends on the drafting. In Heritage Oil and Gas Ltd v Tullow Uganda Ltd [2014] EWCA Civ 1048, the Court of Appeal declined to read a notice requirement as a condition precedent, applying a cautious approach to labelling contractual requirements as conditions precedent. A bare requirement to give notice within a period is generally not a condition precedent; language saying the indemnity shall not apply unless notice is given is.
So if you want non-compliance to bar recovery, say so unambiguously; otherwise a court will be slow to imply forfeiture.
Drafting and complying
When drafting, decide deliberately whether notice is a condition precedent and, if so, say it: the indemnified party shall not be entitled to any indemnity unless it has complied with the notice requirements in clause X. Make the timing realistic and the content requirements clear. When operating the contract, treat any potential claim as a notice trigger - notify the indemnifier at least as early as you notify insurers, and give enough detail that a reasonable recipient knows exactly what is concerned.
In review, the highest-value checks are whether notice is a condition precedent, whether the timing is one you can actually meet (an "as soon as possible" limb is a trap), and whether the content threshold is satisfiable.
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Practical checklist
- Treat notice as potentially fatal: where it is a condition precedent, breach removes the claim (Towergate v Hopkinson [2020] EWHC 984 (Comm)).
- Watch "as soon as possible" limbs - they create a dual condition precedent separate from any long-stop.
- Notify the indemnifier at least as early as you notify insurers; the trigger threshold is low.
- Give enough detail that a reasonable recipient knows exactly what is concerned (Dodika v United Luck [2021] EWCA Civ 638).
- If you want non-compliance to bar recovery, use express "shall not be entitled... unless" wording (Heritage Oil v Tullow [2014] EWCA Civ 1048).
- In review, check whether the timing and content requirements are realistically satisfiable.
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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