Max Twivy successfully represented the Claimant in the TCC in MY Contracts Ltd v 74 Hamilton Terrace Freehold Ltd [2024] EWHC 2896 (TCC), a Part 8 claim relating to the interpretation of a contractual provision setting a time limit by which a notice had to be served.
The case concerned bespoke amendments to a contract based on the JCT Design and Build 2016 form of contract, and in particular paragraph 6 of Article 12 (“Para 6”) which provided as follows (emphasis added):
“The Contractor shall have no liability to the Employer in respect of any monetary amount that is not included in the Notification of Façade Costs or an update of the Notification of Façade Costs received by the Contractor not later than 4 (four) months after the date of this Contract”.
The date of the Contract was 2 March 2023.
The issue before the court was whether documents which had been sent by the Employer (the Defendant) to the Contractor (the Claimant) on Monday 3 July 2023 were or were not sent in compliance with the time limit set out in Para 6. The Claimant sought a declaration to the effect that 3 July 2023 fell outside the period specified in Para 6.
The parties agreed that the ‘corresponding date rule’ applied to Para 6. It followed that it was common ground that, prima facie, in order to fall within the time limit in Para 6, a notice had to be received on or before Sunday 2 July 2023. The Defendant raised two arguments in answer to this prima facie starting point.
One argument raised by the Defendant was that, where the period under Para 6 prima facie expired on a non-working day (a Sunday), a notice received on the next business day (Monday 3 July) should be construed as being within time under Para 6, because a notice cannot be “received” on a non-business day when the receiving party could not be expected to deal with it.
Deputy High Court Judge Mr Adrian Williamson KC rejected that argument, on the basis that: the Defendant’s position would involve the words “or upon the next Business Day thereafter” being added to Para 6; the court does not make contracts for the parties; and the parties defined the term Business Day in the contract and used it elsewhere within Article 12 itself, but chose not to use it in Para 6, which provided a “strong indication against writing in words” which would extend the period to the next Business Day.
Further, although (in light of the finding above) the Judge did not need to decide the point, the Judge indicated his view to be that a notice served by email could be “received” on a Sunday even if the receiving party could not be expected to deal with it at that time.
The other argument raised by the Defendant was that the time period in Para 6 should be construed as being extended to allow for the Public Holidays which fell within the four month period, by reference to Clause 1.5 of the Contract. The Judge held that Clause 1.5 had no application to Para 6, as it only applied to acts required to be done “within a specified period of days”, whilst the time limit in Para 6 was expressed as a period of “months”.
Max was instructed by Fenwick Elliott LLP.
The full judgment is available here.
