The Court of Appeal recently upheld the first instance decision of Mr Justice Burton in Ener-G Holdings Plc v Philip Hormell2, which we considered in January3, that a breach of warranty claim was out of time because the claimant had not complied with the contractual notice provisions. The Court of Appeal confirmed the first instance finding that the notice clause was non-exclusive, despite it providing for two specific methods of service. Accordingly other methods of service could be used.  

Factual background  

Ener-G Holdings plc, the claimant, acquired shares from Philip Hormell, the defendant, pursuant to a share purchase agreement (SPA), completion of which took place on 2 April 2008.  

The defendant, as seller, gave a number of representations and warranties in the SPA. The parties agreed a strict time limit within which any claims for breach had to be brought. The claimant was required to serve a notice of a claim by the second anniversary of completion, 2 April 2010, and thereafter had one year within which to serve the claim form on the defendant.  

Clause 13 of the SPA provided for notices to be delivered personally or to be sent by recorded delivery. It further provided that notices delivered personally were deemed received when delivered (unless outside business hours), whilst notices sent by recorded delivery were deemed delivered two business days after posting.

The claimant wished to pursue a claim for breach of warranty. It arranged for a process server to deliver a notice of claim on the defendant, and also sent the notice by recorded delivery on 30 March 2010. The notice was left in the defendant’s porch. The defendant did, however, receive the notice that day, before 5.00pm, and discussed its contents with his solicitor.  

The claimant issued a claim form on 29 March 2011. Again, a process server was instructed to effect service. On this occasion, he posted the documents through the defendant’s letterbox. The defendant did not see the claim form until 2 April 2011 when he emptied the letterbox.

If this did not constitute personal service within clause 13.2, it was common ground that by virtue of CPR 6.14 service of the claim form occurred two business days after 29 March 2011 i.e. on 31 March 2011.  

The issues

The Court had to consider what constituted “delivering [the notice] personally” for the purposes or clause 13.2 and whether the contractual provisions for serving notices were exclusive.  

The claimant argued that it had brought and served its claim in time on the following alternative grounds. First, personal delivery meant delivery by an individual, rather than delivery to an individual. Therefore, the first notice was served on 30 March 2010 and the claim form on 29 March 2011. In the alternative, the claimant submitted that (if the first argument was to fail), clause 13.2 was exclusive as to the methods of service. The first notice would therefore not have been effectively served until 1 April 2010 (by recorded delivery) because the leaving of document by the process server was not “personal delivery” within the meaning of clause 13.2. Therefore, as the claim form was served, at the latest, on 31 March 2011 (two business days after posting through the letter box) it was served within a year of the notice of claim.  

The defendant contended that neither document delivered by the process servers was by way of “personal delivery” within clause 13.2, but that did not matter because it was not an exclusive clause. Methods of service other than those set out in the SPA were therefore permitted. The first notice was deemed served on 30 March 2011; the defendant in fact had notice of it. The second notice was deemed served on 31 March 2011, two days after it was posted through the defendant’s letter box.  

The Court had to consider whether the notice provisions in the contract were exclusive, or whether methods of service outside of the contract, but compliant with the CPR, were permitted.  

High Court decision  

Mr Justice Burton held that neither notice delivered by process server was “delivered personally” in accordance with clause 13.2 of the agreement, but that that did not matter because the clause was non-exclusive. The defendant had notice of it and discussed its contents with his solicitor. The first notice was therefore deemed to have been served on 30 March 2010 under CPR 6.3 (c) or CPR 6.23(1) (leaving a document at a specified place).  

Therefore, the date by which the claimant needed to have served the claim form was 30 March 2011. The proceedings were posted through the defendant’s letter box on 29 March 2011 (and had not come to the defendant’s attention until 2 April). The proceedings were not deemed served either under clause 13.2 or under the CPR until 31 March 2011. Service was therefore out of time.  

Court of Appeal decision

The Court of Appeal upheld Mr Justice Burton’s decision by 2:1, LJ Longmore dissenting (on whether the methods of service in clause 13.2 were exclusive). The Master of the Rolls followed the Court of Appeal’s earlier decision in Bottin (International) Investments Ltd v Vension Group Plc4 where it was held that personal delivery “qualified the delivery to the recipient of the notice” rather than the person delivering the notice. The claimant’s first argument could not therefore succeed. In relation to the claimant’s alternative proposition that clause 13.2 was exclusive rather than permissive, the Master of the Rolls upheld the decision of Mr Justice Burton, but noted that he had not found the point easy.  

In holding that the clause was permissive, the Court took a purposive approach to the construction of the clause having regard to the SPA as a whole. The Master of the Rolls relied on the use of the word “may” in clause 13.2, as well as referring to other clauses in the agreement which lent support to the proposition that the methods of notice set out in that clause were not intended to be exhaustive.  

Comment  

The fact that the Court of Appeal upheld this decision in relation to the non-exclusivity of the notice clause may come as a surprise. However, it was clear that this was not an easy conclusion for the Court.  

This case provides a salutary lesson to contract draftsmen, as well as those later responsible for construing a contract.

Notice clauses are generally standard form clauses, which may be reviewed late in the day, or in the heat of negotiations may be entirely overlooked. The case demonstrates the importance of ensuring that notice clauses are drafted clearly to reflect the parties’ intentions. Parties must be able to understand exactly what the requirements are under the contract in order to serve documents correctly, and within the specified time limits.  

Where parties intend to specify certain methods of contractual service (to the exclusion of other methods) they need to do so in language which leaves no doubt. On a more practical level, the case also emphasises that leaving service of documents until the last minute can have disastrous consequences.