In relation to its first argument, FK submitted that the effect of clause 4.6.3.1 was to
require the application to be received no later than 4 days before the valuation date,
and receipt on 20 October was less 4 days or at least between 3 and 4 days. Elements countered that this was tantamount to saying ‘ days ’ meant ‘ c lear’ days and the clause used no such language. Further, ‘ day ’ in English law was always treated as a full day, and fractions of a day were to be ignored. FK’s alternative argument was that the clause should be construed such that the payment application needed to be received on or before the end of site working hours on whichever was the correct day (following the first argument) because that best met the reasonable commercial expectations of the parties. Elements ’ response to this was to point out that the Sub-Contract imposed no restriction on
the time of day in which a Payment Application might be made and received. They
relied again on the 'fractions of a day' principle as equally applicable to defeat the
second argument. The reference in the Specification to site opening times was
irrelevant and drew attention to the fact that the provision, when read in full, related
to the time during which the sub-contractor was entitled to carry out its work.
Indeed, the absence of any cross-reference between 4.6.3.1 and this part of the
Specification supported the argument that the parties had not intended it to be
determinative of the times permitted for service of a payment application. FK's
construction would lead to uncertainty: what was to define the hours within which a
payment notice could be validly served? On the other hand, Elements' construction
of the contract meant simply that, in the case of a Payment Application made by
email, it was received when it arrived in the inbox of the intended recipient, which was to be determined as a matter of fact – as to which they relied on the accepted evidence of actual timed receipt. Finally, as to commercial expectation, Elements
again relied on its uncontroverted evidence that at least two previous payment
Made with FlippingBook - PDF hosting