The case of Galliford Try Construction Ltd v Arcadis Consulting (UK) Ltd and ors involved the design and construction of a new multimillion-pound library and history centre in Worcester known as 'the Hive'.
Galliford Try Construction Ltd first entered into a contract with the employer, WLHC ProjectCo Ltd, for its undertakings in relation to the project on 29 January 2010. Practical completion was certified as having taken place on 27 January 2012.
The claimant, Galliford Try Construction Ltd, undertook the financing, construction, completion, commissioning and testing of the project, and the defendants, Arcadis Consulting (UK) Ltd and others, were various subcontractors appointed during the project.
The dispute between the parties related to alleged defects at the Hive. Protective proceedings were issued against the defendants on 26 January 2024. These are proceedings issued by a claimant, often before completion of the normal pre-action steps, because the claimant would otherwise be out of time to issue.
Judge orders stay
In this case, the claimant issued the proceedings protectively before the parties had taken the ordinary steps as set out in the Pre-Action Protocol for Construction and Engineering Disputes.
As the parties were yet to complete the ordinary pre-action steps, the judge ordered that the proceedings were stayed, i.e. put on hold to allow compliance, until 22 February 2025.
One step under the Pre-Action Protocol for Construction and Engineering Disputes is that the parties should meet on a 'without prejudice' basis to explore the scope for settlement or narrowing of the issues in dispute.
However, the proposed meeting was delayed on a number of occasions by agreement between the parties, ultimately to a date after the stay was due to expire on 22 February 2025 and after the deadline by which the claimant was required to serve the claim on the defendant(s) four days later.
On 6 March 2025, after the date the stay was due to be lifted and after the date by which service of the claim was due on the defendants, the claimant applied to the court to extend the stay until after the agreed rescheduled without prejudice meeting was to have taken place.
Subsequently, on 28 March 2025, the claimant made another application to the court seeking either an extension of the stay to the proceedings or an extension of the deadline by which it was required to serve the claim on the defendants. The defendants opposed these applications.
The claimant argued that the court should grant the extensions because the defendants had agreed to delay the without prejudice meeting to a time beyond when the stay would have expired.
In addition, they argued that no meaningful meeting could take place at that time unless there was an extension, given that the claimant would not otherwise be able to bring a claim as it would be time-barred.
The defendants argued that they had not expressly or implicitly agreed to an extension.
The court considered the arguments of the parties, and ultimately rejected the claimant's position that there was an agreement between the parties to extend the stay simply by virtue of the fact that the parties had agreed to a without prejudice meeting on a date after the date the stay would have expired.
Moreover, the court found that it had no jurisdiction and therefore no power to consider the applications because they were notably made after the time for serving the claim had already expired.
Key takeaways
Although this case may be unfortunate for the claimant, there are some useful reminders for anyone involved in a construction dispute so that they don't find themselves in a similar position.
- If more time is needed to comply with a court deadline, it is important, and in some circumstances essential, to apply for an extension before the relevant court deadline passes – not retrospectively.
- If a claimant needs more time to serve the claim on the defendant(s) and the application is made after the deadline to do so has already passed, the court does not have jurisdiction to grant an extension, and therefore any retrospective application is doomed to fail.
- There is provision under the Civil Procedure Rules for the parties to extend some court deadlines by up to 28 days by written agreement without the consent of the court, although the court still needs to be advised. Parties wishing to rely on this provision should check the rules allowing this carefully and be aware that implied consent is not sufficient.
While it will come as no surprise to anyone regularly dealing with disputes in the construction industry, to those lucky enough not to be so, this case serves as a warning that the courts will not, and in some cases cannot, be generous when it comes to non-adherence with limitation periods and procedural time limits.
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