Coulson J in the TCC has considered the question of parties’ ability to agree in contractual terms to vary the usual limitation period governing claims either side might make under a construction contract.

He noted that this issue had recently been decided by the CA in favour of allowing parties to vary the limitation period to provide certainty in Inframatrix Investments Ltd v Dean Construction Ltd [2012] EWCA Civ 64.

However, in this latest case, the contract referred to a bar to all claims “unless filed within one year after substantial completion of the [contractual] services”. Coulson J decided that this did not vary the 6-year time limit for commencing court proceedings, since court proceedings in England & Wales are commenced by “issuing” a claim form rather than “filing” anything. Filing of documents at court takes place once proceedings are under way. However, the contractual provision should be construed to refer to something, and he decided it meant that a claim would not be permitted unless a Letter of Claim had been sent to (ie “filed” with) the respondent party (defendant) within a year of the completion of the services complained of.

See Elvanite Full Circle Ltd v Amec Earth & Environmental (UK) Ltd [2013] EWHC 1191 (TCC).