When calculating the latest date for the issue of a Pay Less Notice, should a Bank Holiday occurring within the 5 day period before the Final Date for Payment be excluded from the 5 days, e.g. the 5 days becomes 6 days before the FDP ?
Good question and the answer is that you do count them in calculating a period of time. So if you had to serve a notice 7 days before a given date you would include weekends and public holidays in the days days. Of course the contract may have been amended to exclude weekends and bank holidays and may say ‘7 clear days’ that would mean you have to add another day into the calculations. I would always advise you to get specific legal advice on this issue as getting it wrong could lead to a smash and grab; so its best to always go on the side of caution.
This can be compared with the Adjudication process where under the Construction Act and the Scheme for Construction Contracts Bank Holidays are excluded from time periods.
Mike, to clarify my understanding of your reply can you review and comment on the following scenario’s:
The Final Date for Payment falls on a Thursday.
Latest Date for issue of a Payless Notice is 5 days before (no amendment to the JCT standard form).
Therefore, the latest date for issue of a Pay Less Notice will be should be the preceding Saturday.
However, if in the above, the Monday is Bank Holiday, this would have been included in the calculation for the Final Date for Payment, and thus extended the Final Date for Payment to a Friday. Thus 5 days prior to that (when calculating the latest date for the Pay Less Notice) would “normally” fall on the preeceding Sunday, BUT the BH Monday will also have to be accounted for when calculating the latest date for PL Notice i.e. moving that day to the Saturday