A & V Building Solutions Limited v J & B Hopkins Limited
[2023] EWCA Civ 54
Elements (Europe) Limited v FK Building Limited
30 March 2023
[2023] EWHC 726 (TCC)
High Court
Two companies argued over a payment. The contract said a payment needed to be received 4 days before a deadline. The judge said '4 days' means calendar days, not just working hours. So the payment was on time, even though it was late in the evening.
Key Facts
- •Elements (Europe) Limited ('Elements') sought summary judgment against FK Building Limited ('FK') for £3,950,190.52 plus interest and costs based on an adjudication award.
- •FK did not dispute the award's enforceability but argued the payment application was invalid due to late receipt.
- •The dispute settled after a draft judgment, but the judge decided to hand down the judgment due to the importance of the legal issue.
- •The sub-contract incorporated JCT Standard Building Sub-Contract Conditions SBC/Sub/C 2016 with amendments.
- •Clause 4.6.3.1 stated payment applications must be received 'not later than 4 days prior to the Interim Valuation Date'.
- •Elements' Payment Application No. 16 was emailed at 22:07 on 21 October 2022, received between 22:07 and 22:08.
- •FK argued 'received' meant receipt within site working hours (before 18:00 on 20th or 21st October).
- •Elements argued 'days' means calendar days, ignoring fractions of a day, supported by case law.
Legal Principles
A 'day' in a contract is treated as an indivisible whole; fractions of a day are ignored.
Lester v Garland (1808) 15 Ves 248
Unless explicitly stated otherwise, 'days' in a contract refers to calendar days.
Lewison on the Interpretation of Contracts 7th Edn at 15-11 to 15.15
The court does not generally deal in fractions of a day.
Boxxe v Secretary of State for Justice [2023] EWHC 533 (TCC)
The meaning of contract clauses should be determined by their natural and ordinary meaning.
This principle is applied throughout the judgment.
Part 8 claims challenging adjudication awards should be short, self-contained, require no oral evidence beyond that available in the enforcement hearing and be unconscionable to ignore in summary judgment.
A&V Building Solutions Ltd v J&B Hopkins Ltd [2023] 2023 EWCA Civ 54; Hutton Construction Limited v Wilson Properties (London) Ltd [2017] EWHC 517 (TCC)
Outcomes
FK's Part 8 claim was dismissed.
The payment application was validly made as it was received on 21 October 2022, before the 4-day deadline. The contract did not specify a time of day for receipt, and the court followed established precedent on treating 'days' as calendar days.
Summary judgment for Elements was not entered, due to the settlement.
The underlying dispute settled by a consent order.
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