Ejusdem Generis: How 'Any Other Cause' in an EOT Clause Gets Read Down

Ejusdem generis is the rule that general words following a list of specific items are read as limited to things of the same kind as the items listed. The Latin means 'of the same kind'.

In an extension of time clause, it can shrink 'any other cause beyond the contractor's control' to causes that resemble the named events. A catch-all that looks generous at signature can prove narrow in a claim.

What Does Ejusdem Generis Mean?

The rule applies when three things line up:

1. A clause lists specific items that share a recognisable character.
2. General words, such as 'or any other cause', follow.
3. Nothing shows the parties meant those words to run wider.

When all three line up, the general words are confined to the class the list creates.

The justification is that parties are presumed not to use words for nothing. In Zhoushan Jinhaiwan Shipyard v Golden Exquisite (2014), Leggatt J set out the argument he went on to prefer. If the general words have an unrestricted meaning, 'the specifically enumerated items are surplusage'. Why list strikes and riots at all if 'any other cause' already covers everything?

Modern courts treat the rule as an aid, not a command, and it gives way to clear wording and commercial purpose. For a contractor, a catch-all is worth only what the list in front of it allows. The rule sits with contra proferentem among the legal maxims in construction contracts that still decide real claims.

How Ejusdem Generis Reads Down 'Any Other Cause' in an EOT Clause

Bespoke and amended EOT clauses often end with a sweep-up such as 'strikes, riots, civil commotion, war or any other cause beyond the Contractor's control'. Read literally, the last words cover almost anything the contractor did not cause. Read ejusdem generis, they cover only events like those listed, and each listed event is a neutral risk that neither party controls.

That reading strips out two categories contractors often push through the catch-all:

1. Employer conduct - in Zhoushan, a shipbuilding contract listed force majeure type causes ending with 'or other causes beyond the control of the Builder'. Leggatt J held that delay caused by the buyer's breach fell outside those words, mainly because the contract dealt with it elsewhere.
2. Commercial risk - a price rise is not the same kind of event as a war.

The problem is rarely that the event was outside the contractor's control. It is that the event was not the same kind of event. A mixed list behaves differently: where late drawings sit beside storms, there is no single class, and the general words keep more of their width.

But the narrow reading can also hurt the employer. Under English law, if no EOT ground covers the employer's own delay, the employer cannot hold the contractor to the completion date, and time may be at large.

In Peak Construction v McKinney Foundations (1970), Salmon LJ said the clause must cover employer fault 'expressly or by necessary inference'. Pulling the other way, Multiplex v Honeywell (2007) holds that an ambiguous EOT clause is construed in favour of the contractor, so a tribunal may read the catch-all widely. No claim should rest on either outcome.

What FIDIC Sub-Clause 8.4 and the 2017 Sub-Clause 8.5 Actually Cover

Unamended FIDIC avoids the problem because it has no open catch-all. Sub-Clause 8.4 of the 1999 Red Book lists five grounds, including:

• Grounds (a), (c) and (d) - a Variation or substantial change in quantities, 'exceptionally adverse climatic conditions', and Unforeseeable shortages of personnel or Goods caused by epidemic or governmental actions
• Ground (e) - 'any delay, impediment or prevention' caused by or attributable to the Employer, its Personnel or its other contractors on the Site

Ground (b) is 'a cause of delay giving an entitlement to extension of time under a Sub-Clause of these Conditions'. It sweeps by cross-reference, picking up Sub-Clauses such as 1.9 (delayed drawings), 2.1 (Site access), 4.12 (physical conditions) and 8.5 (authorities). The 4th edition had referred to 'other special circumstances'. The 1999 drafters dropped those words, so the list is closed.

The 2017 Red Book keeps the same five grounds in Sub-Clause 8.5, with minor changes to the climatic and shortages grounds, and a Variation needs no separate claim notice. A catch-all therefore usually arrives through Particular Conditions or a bespoke form, and it should be read against the list it follows before anyone relies on it.

Force Majeure Lists and 'Including But Not Limited To'

FIDIC 1999 Sub-Clause 19.1 defines Force Majeure through four conditions, including that the event is beyond a Party's control and could not reasonably have been avoided or overcome. It then says Force Majeure 'may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied'.

The 2017 Exceptional Events clause follows the same structure. The definition, not resemblance to the list, decides whether an event qualifies at all.

Money works differently. Under Sub-Clause 19.4(b), Cost is payable only if the event is 'of the kind described in sub-paragraphs (i) to (iv)' and, for categories (ii) to (iv), occurs in the Country. FIDIC's 2023 guidance memorandum confirms that Cost under 19.4(b) and the 2017 Sub-Clause 18.4(b) is strictly limited to some of the listed man-made events. A force majeure claim can be valid on time and empty on cost.

Bespoke clauses get similar treatment. In Tandrin Aviation v Aero Toy Store (2010), an aircraft buyer argued that the collapse of the financial markets fell within 'any other cause beyond the Seller's reasonable control'. Hamblen J said the phrase need not be read ejusdem generis. He still found it 'telling' that no listed example was 'even remotely connected with economic downturn, market circumstances or the financing of the deal'.

The same logic governs 'including but not limited to'. Those words mark the list as illustrative, which weakens the read-down argument. They do not switch off context, and the examples still colour the general words.

Drafting That Defeats the Rule

Parties who want a true sweep-up must say so, with words such as 'whether or not similar to the foregoing' or 'of whatsoever nature'. English courts have generally read that wording as pointing away from a narrow reading, and a general ground in its own sub-paragraph tends to do the same.

Contractors should also want employer risk stated expressly, as in FIDIC's ground (e). At tender, ask what each catch-all covers if read down, then clarify, price or qualify.

Ejusdem Generis vs Noscitur a Sociis

Noscitur a sociis means a word is known by its associates. It is the broader rule: any word in a list takes colour from the words around it. Ejusdem generis is a specific application, aimed at general words that close a list.

In FCA v Arch Insurance (2020), the court called both 'specific applications of the primary principle, which is to read the words of a particular provision in context'.

In its example, 'linen' listed beside household furniture and wearing apparel in an old fire policy meant household or clothing linen, not a draper's stock. In an EOT clause listing 'flood, fire, storm or closure of the Site', closure likely means a closure of that physical kind.

How GCC Tribunals Treat Catch-All Wording

The civil codes of Qatar and the UAE contain no rule by that Latin name. Qatar's code, for example, applies clear wording as written. Where interpretation is needed, it looks for the parties' common intention beyond the literal words, guided by the nature of the transaction and the honesty and confidence expected between the parties. Remaining doubt is resolved in favour of the obligor.

That leaves room for the same argument in different clothing, because a list followed by general words is evidence of what the parties intended. The codes also have their own force majeure and impossibility rules, and time at large does not transfer automatically. Test the point with local counsel first.

Clause Wording, Likely Reading and What to Do

Practical Steps Before You Rely on the Catch-All

Map each delay event to a specific listed ground. Under FIDIC that means the five grounds in Sub-Clause 8.4 or 8.5 and the Sub-Clauses they cross-refer to. Sorting events into excusable, compensable and non-excusable delay shows which ground carries time and which also carries money.

Plead the catch-all only in the alternative, with records showing the event resembles the listed causes. Keep every notice compliant: the 28-day notice time bar under Clause 20.1 applies whichever ground you choose, and a FIDIC 1999 force majeure notice is due within 14 days under Sub-Clause 19.2.

In Zhoushan, the shipyard's failure to give the seven-day notice its contract required was enough on its own to stop the delays counting as permissible. The notice deadline calculator fixes those dates.

We review hundreds of EOT submissions across the GCC every year, and the weak ones lean on 'any other cause' for events a specific ground would have carried. The employer's reply writes itself. A disciplined process for managing EOT claims on GCC projects keeps the catch-all in reserve.

At CALIM, our delay analysis consultants tie every delay event to the contractual ground that carries it before the analysis starts, so the catch-all stays a fallback.

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