applications that had been sent in the late evening had been accepted as properly
submitted.
Is Part 8 appropriate?
Elements argued that Part 8 was not appropriate as the questions did not fall within
the exception set out in Hutton Construction Limited v Wilson 11 . They also contended that Coulson J in Hutton had set a higher test: that the adjudicator’s decision must be ‘obviously wrong’ o r one to be taken ‘on any view ’ . The court did not agree that Coulson J intended to set a higher standard than the TCC Guide. Applying Hutton
and A&V Building Solutions 12 and the TCC Guide, the court was satisfied that the
point of construction before it was a short and straightforward one capable of
determination by the court. It would have taken a different view had the evidence
relied upon by Elements been disputed and/or had the issue of waiver or estoppel
been raised based upon the factual evidence of site practice.
The proper construction of clause 4.6.3.1
Days or clear days? There was an important distinction between 4 ‘days’ and 4 ‘ clear days’. If something had to be done 4 c lear days before a certain date, then it must be done at the latest on the fifth day before that date. If it was to be done 4 days
before the date, then it could be done on the fourth day prior to that date. The
language used was clear and the words of clause 4.6.3.1 could not be construed as meaning ‘clear’ days.
FK placed significantly more emphasis on their second argument, that receipt timed
at 22.08 was not received on or before the end of site working hours and was
11 Hutton Construction Limited v Wilson Properties (London) Ltd [2017] EWHC 517 (TCC).
12 Court of Appeal in A&V Building Solutions Ltd v J&B Hopkins Ltd [2023] 2023 EWCA Civ 54.
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