Invalid notices of termination: calculation of time periods

The UK Government seems to have got itself into a pickle over calculating the 3 month time limit for appealing a judgment of the European Court of Human Rights in the Abu Qatada extradition case.  Among many, hysterical newspaper articles, this article by an ex-Government lawyer stood out for IP Draughts as a model of well-reasoned sanity.

The court’s judgment is dated 17th January 2012.  If you count forward three months from that date (and start counting on 17th January), the deadline is midnight at the end of Monday 16th April.  If, however, you ignore the date of the judgment, and only start counting from 18th January, the deadline is midnight at the end of Tuesday 17th April.

The UK Government is clearly of the view that the Monday deadline applied.  On Tuesday this week, it started fresh extradition proceedings on the basis that the previous case was now dead.  It seems that the court’s administrative officials may have been of the view that the Tuesday deadline applied; they accepted the papers for an appeal by Abu Qatada at 11 pm on Tuesday.  There is some suggestion that the court’s officials have  backtracked since Tuesday, and now say that it is up the judges of the court to decide whether or not the appeal was lodged in time.

Although the article referred to above mentions some relevant case law, it seems that the legal position on time limits in cases of this kind has not be clearly established.

Is it any easier when deciding time periods in contracts?

The issues described above are very similar to those that arise when deciding when notice periods apply in contracts.  In the case of contracts, English common law has centuries of experience on this issue, and has developed some settled principles that are applied by the courts.

Consider the example of a contract that states that either party may terminate the contract on 3 months’ notice.  If notice is served today (20th April 2012), when will termination occur?  Several rules need to be considered.

1. Prior to 1925, references in contracts to months were interpreted as lunar months.  There are 13 lunar months in a year.  By section 61 of the Law of Property Act 1925, references in contracts to months are to be interpreted as calendar months, unless the context otherwise requires.
2. Calendar months are counted from a specified date. It is not necessary to consider the period from the 1st of a month to, say, 31st (unless the notice period starts on 1st of a month).  This contrasts with the usual understanding of calendar year, which tends to be thought of as the period from 1st January to 31st December.
3. The “corresponding date rule” requires that one looks at the same date in the diary the relevant number of months ahead.  Thus a period of 3 months from 20th April expires on 20th July.  In the case of Dodds v Walker [1980] 1 WLR 1061, in the Court of Appeal, Templeman LJ said:

…if an act is authorised to be performed on any arbitrary day in any month of the year, then one month elapses on the corresponding day of the next month, provided that the day of the act itself is excluded from computation.

In the same case, in the House of Lords, Lord Diplock said:

The corresponding date rule is simple.  It is easy of application.  …all that the calculator has to do is make in his diary the corresponding date in the appropriate subsequent month.

In the same case, Templeman LJ clarified that if the period expired on a date that did not exist in a particular months (eg 31st February), then the period would expire on the last day of that month.

As Lewison (now Lewison LJ) points out in his book, The Interpretation of Contracts, 3rd edition, at page 426, this case was concerned with interpretation of a statute, but the same rule applies to contracts.

Note that the corresponding date rule assumes that you start counting on the day after the notice is given.  Case law on this and other detailed issues concerning calculation of dates, is summarised in our book, A-Z Guide to Boilerplate and Commercial Clauses, second edition, at page 347 onwards.

IP Draughts’ preference is to avoid using months as the basis of calculation, in view of the complexities described above.  Stating a notice period of 90 days reduces the risk of incorrect calculation.  Giving a few extra days’ notice to be on the safe side may also reduce the risk of giving an invalid notice.  When making that calculation, the separate provisions of the contract’s notices clause should not be overlooked.

Coming back to the Abu Qatada case, it appears that the cautious view would be to assume that one starts counting on the day after the judgment, and that an appeal could be lodged by the other side at any time up to midnight on Tuesday 17th April.  It is not yet clear whether the Home Office legal department was asked to advise on this point and, if it was, what advice was given.