This article appeared in Construction News in February 2006 and was written by Catriona Dodsworth at Pinsent Masons.
Construction Contracts are littered with provisions requiring things to be done within a prescribed period, be it a month, a week or a number of days and they all look deceptively simple but sadly, they are not and reckoning time under those contracts can be crucially important. The same is true of statutes, Court rules and the like. You had better get it right or in many cases face unpleasant consequences. In some circumstances, missing deadlines by a day can be as bad as missing it by a year and nasty fates await those who miss time limits. But if you thought reckoning time was straight forward - think again. The topic has been the subject of cases that have gone all the way to the House of Lords. So, it is worth spending a moment or two to consider the relevant rules.
The first thing you should always do is check whether the contract or statute makes any express provision as to how time should be calculated.
The Construction Act, for example, also prescribes rules for reckoning periods of time in S.116. Note that under that Act Bank Holidays, Christmas Day and Good Friday are not counted, whereas many contracts simply exclude Bank Holidays. So what happens when (like last year) Christmas Day falls on a Sunday and the following Monday and Tuesday are also Bank Holidays? In this case, the Act would give you one more day than the contract.
General rules have also evolved as to how time should be reckoned. For example, a "day" can mean a 24 hour period from a given time or a calendar day depending on the context in which it is used in a contract. As a general rule fractions of a day are not counted in interpreting a contract. It has also been said that where time is expressed to run from a certain day the day named is generally excluded in computing the period.
Generally the day the event starts the clock ticking will be excluded. However, if the period within which an act is to be done is expressed as "beginning" with a specified day then the day will be included in the period.
Looking at the other end of a period of time – if an act that has to be done "within" or "during" a period then a party has until midnight on the last day of the period to do the act. If the act is required to be done "by" a certain date then that person has until the end of that date, and not before it, to do the act required. So, if a party has 7 days to respond from the date of a notice validly served on Friday 10 February 2006 that party has until the end of Friday 17 February 2006 to respond.
A problem can arise with computing months as well. Generally the courts adopt the "Corresponding Date Rule". This means that if you have a certain number of months from a certain date to do an act then you have until the end of the corresponding day that many months later to do the act.
For example, if a notice is served on 30 September 2005 and a response must be given within 4 months from that date then the corresponding date 4 months later is 30 January 2006. It is a curious anomaly that in that circumstance the responding party will not have had the whole of the calendar month of January 2006 to respond but the courts say that anomaly is not reason to displace the Corresponding Date Rule.
A period of a year may mean a calendar year or a period of 12 months from a given date. However, generally years are reckoned in a similar way to months and a year is reckoned from a date to the end of the corresponding date in the following year. So for example, if an agreement is expressed to be for one year and is dated 3 March 1997 then the term will expire at the end of 3 March 1998.
Exceptions to the rule are common and not always easy to reconcile so it pays to look carefully at both the document in question and the case law.
Reckoning time under the Court rules (CPR) is dealt with in CPR Part 2 and applies to any period of time specified by the CPR itself or by a practice direction, judgment or order of the court.
Curiously, reckoning time under the CPR is different to reckoning time under a contract or statute. CPR Part 2.8(2) requires days to be calculated as "clear days". This means that in reckoning the period the date on which the period begins and, if the end of the period is defined by reference to an event, the day on which the event occurs is not included in the period. This can effectively give you an extra day to do something compared to the rules for calculating days under contracts or statutes.
An example given by the CPR is where the court fixes the date for a hearing to take place at least 28 days after the date of a notice. If the court gives notice of the hearing on 1 October 2006 then the earliest date for the hearing is 30 October 2006 – there are 28 "clear days" between the two events.
However, you must be careful of the language used as illustrated by another example given in the CPR. If particulars of claim must be served "within" 14 days of service of the claim form and the claim form is served on 2 October then the last day for service of the particulars of claim is 16 October. In this case the date of service is excluded and a period of 14 days is available to serve the particulars of claim.
Generally weekends and holidays are counted in the reckoning of days under the CPR unless the period is 5 days or less in which case they are excluded from reckoning but if the date happens to fall on a day when the court office is closed for some reason (e.g. a weekend or holiday) then the document may be served the next day the court office is open.
The moral of the story is that reckoning time is not as straightforward as it may appear. There are some general rules but you must always pay careful attention to the language used in the document in question, the context in which it is used and any case law applicable.
- Reckoning periods of time is not as easy as it sounds;
- It is crucial to get it right because if not the consequences can be severe. For example, you may lose your right to make a claim;
- Read the language of the contract rules carefully and look out for key words like "by", "within", "from" or "after";
- if in doubt look to the statutes for guidance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.