Elements (Europe) Limited v FK Building Limited

For the purpose of a contractual deadline, “days” are not “clear days” unless the contract says so. Where an obligation must be performed on a particular calendar day, the whole day is ordinarily available, and the law does not count fractions of a day.

A requirement that a payment application be “received” concerns the act which triggers compliance, not the time of day by which receipt must occur. Unless the contract expressly imposes working-hour limits, an email received in the recipient’s server or inbox late on the relevant day is received on that day. Site opening hours cannot be imported into payment provisions without contractual wording supporting that construction.

Elements sought summary judgment to enforce an adjudicator’s award requiring FK to pay approximately £3.95 million under a construction subcontract. FK brought related Part 8 proceedings, contending that the payment application underlying the award was invalid because it was received late.

The subcontract required an interim payment application to be received not later than four days before the relevant interim valuation date. The application was received by email at about 22.08 on 21 October 2022, while the valuation date was 25 October 2022. The issues were whether “four days” meant four clear days and whether receipt after site working hours was contractually ineffective.

1. Part 8 procedure. The court rejected the submission that a Part 8 applicant must additionally establish that the adjudicator’s decision was obviously wrong. The relevant gateway questions were whether the issue was short and self-contained, required no oral evidence or further elaboration, and was one which it would be unconscionable to ignore on the enforcement application: A&V Building Solutions and the TCC Guide. Those requirements were satisfied.
2. Meaning of “four days”. “Clear days” is a distinct expression meaning days with no part occupied or deducted. The subcontract used “four days”, not “four clear days”. The application therefore had to be received on 21 October 2022, rather than by 20 October.
3. Fractions of a day. The established common-law principle is that the court does not divide a calendar day into fractions. Unless the subcontract provided otherwise, receipt on 21 October was effective at any time up to the end of that day.
4. Receipt and site hours. “Received” identified the event required for compliance, namely actual receipt by FK’s servers. It did not impose an unstated restriction based on site opening hours. The specification’s site hours related to when the works could be carried out and had no bearing on the meaning of “days” in the payment and notice provisions.
5. Payment Application No 16 was therefore validly made. The adjudicator had made no error on this issue. The Part 8 claim was dismissed and the award was to be enforced, although the underlying dispute had settled and the parties’ consent order meant that no summary judgment was formally entered.