The TCC Considers The Meaning Of 'Days' Vs. 'Clear Days'

• Published date: 10 August 2023
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: IBB Law
• Author: Samantha Beasley

When providing judgment on a range of matters, the Courts will often need to look at the 'construction' (i.e., the meaning) of contractual terms and conditions which are core to the issues in dispute. This can range from complicated formulas to the construction of a particular sentence or may even boil down to a single word.

In Elements (Europe) Ltd v FK Building Ltd [2023] EWHC 726 the Court determined the meaning of the word 'days' within a JCT Standard Building Sub-Contract Conditions SBCSub/C 2016 Edition (which incorporated bespoke amendments).

It should be noted that the parties settled before judgment was handed down. The Court proceeded to hand down judgment as it concerned a point which had not previously been the subject of judicial consideration and was considered to relate to an important element of this JCT standard form contract, which is widely used in the construction industry.

Background to the matter

Elements (Europe) Ltd ('Elements') commenced proceedings seeking summary judgment against FK in respect of an adjudication decision in the sum of almost '4 million.

FK brought a related Part 8 claim concerning two points relating to the validity of the payment application on which the adjudication decision rested. It being FK's position that the payment application was received late.

The JCT subcontract said that the subcontractor's payment application should be received "...not later than 4 days prior to the Interim Valuation Date for the relevant payment...". The Interim Valuation Date was agreed to be 25 October 2022.

The payment application in question was issued on behalf of Elements via email on 21 October 2022 timed at 22:07. There was no dispute that the email and its attachment was received on the same date that it was sent.

It was FK's position that the payment application was submitted late as it was not received on or before the end of site working hours on 20 October 2022 (being 4 clear days before the Interim Valuation Date) or alternatively, on or before the end of site working hours on 21 October 2022. FK's Counsel placed particular emphasis on the use of the word "received" in the relevant clause. It was argued that the application needed to be received on or before the end of site working hours because such met the "reasonable commercial expectations of the parties".

In contrast, it was Elements' position that the subcontract...