Carillion Construction Ltd v Emcor Engineering Services [2017] EWCA Civ 65

This appeal concerned the correct methodology for awarding an extension of time under a construction contract. The Court of Appeal considered whether, as the sub-contractor argued, the extension of time under clause 11.3 should be awarded “contiguously” (immediately following on from what was previously the due date for completion) or “non-contiguously”, taking into account other events that had occurred in the interim since the completion date was originally set. At first instance in the TCC, the Judge had held that the natural meaning of the words the Contract (a DOM/2 standard form of subcontract) and the commercial common-sense result was that the extension of time should be added contiguously. The main contractor argued on appeal that the clause was permissive and allowed either a contiguous or non-contiguous extension of time to be granted. The Court of Appeal rejected this novel argument. The phrase in the contract “any such revised period or periods” and “extension of time” indicated that the period for completing the works was being revised or extended, and not separate periods of justified delay with their own start and finish dates. The authorities where an extension of time duration was considered – none of which considered the specific argument raised – all involved contiguous extensions of time and supported how a reasonable person with the parties’ background knowledge would understand clause 11.3. Although this may have given rise to anomalies which may mean the Sub-Contract provided to be a bad bargain for one party, it was the clear meaning of the words and, applying Arnold v Brittan, the Court would not depart from the natural meaning of the words.