My Contracts Limited v 74 Hamilton Terrace Freehold Limited

A contractual period expressed in months expires on the corresponding calendar date, unless the contract provides otherwise. A provision excluding public holidays from periods measured in days does not extend a period measured in months. Nor will the court add a next-Business-Day extension where the parties used that expression elsewhere in the contract but omitted it from the relevant provision. The court may not rewrite the parties’ bargain.

The parties entered into a JCT Design and Build Contract 2016, extensively amended, for works at premises in St John’s Wood. Article 12 made the contractor liable for specified façade costs and required the employer’s notification of such costs to be received no later than four months after the contract date.

The employer served documents on 3 July 2023. The adjudicator held that the notification complied with Article 12 paragraph 6. In these Part 8 proceedings, the contractor sought a declaration that the deadline was 2 July 2023 and that the notification was out of time. The issues concerned public holidays, service on a non-Business Day, and whether the court could imply a next-Business-Day extension.

1. Declaration granted. The notification served on 3 July 2023 was out of time under Article 12 paragraph 6.
2. The parties agreed that the corresponding date rule applied. A period of four months beginning on 2 March 2023 therefore expired on 2 July 2023. The notification had to be received by that date.
3. Clause 1.5, which excluded public holidays from a specified period of days, did not apply to Article 12 paragraph 6, which prescribed a period of four months. The court could not use clause 1.5 to rewrite the agreement or extend the contractual period.
4. The court declined to add words providing that the notification could be served on the next Business Day. The parties defined “Business Day” and used that term in Article 12 paragraph 4, but did not use it in paragraph 6. That was a strong indication that no such extension was intended.
5. Obiter, and agreeing with Elements (Europe) Limited v FK Building Limited [2023] EWHC 726 (TCC), the judge considered that an email notice sent on 2 July would have been received on that date even if no person was then available to deal with it. Authorities concerning statutory limitation periods or different contractual notice provisions did not assist.
6. The court would hear counsel on the form of order and consequential matters.