Court Takes Commonsense View Of Delivery Of Notice Clause

When a dispute arises under a contract and notices or other documents have to be delivered to the other side in the dispute, in order to avoid problems it is essential that these are delivered in accordance with the contract terms. This may seem obvious, but proceedings are quite frequently challenged on the basis that notices are incorrectly delivered and therefore invalid.

In a recent case1 involving a construction dispute, a claimant issued a notice referring the dispute to adjudication as provided by the contract. This was sent by post and, although incorrectly addressed, was received the next day. The defendant passed it on to its solicitor. The adjudicator found in the claimant’s favour and ordered the defendant to pay.

The defendant refused. The contract had specified that the notice of adjudication was to be delivered personally or by fax. The defendant argued that the adjudicator therefore had no jurisdiction over the dispute. The clause covering delivery also stated that it would be sufficient ‘to prove that personal delivery was made’.

The matter then went to court, where the claimant argued that as a matter of fact the defendant had received the notice, so the requirements of the delivery clause were satisfied. The court considered that the term ‘delivered personally’ meant that the notice was delivered by an appropriate individual representing the claimant to an appropriate individual representing the defendant. In the view of the court, the method of delivery did not matter. On the facts of the case, actual delivery to an appropriate person (the defendant’s solicitor) had occurred, so the delivery clause was satisfied.

In this case, the claim to resist the notice was unsuccessful because the court took a commonsense approach to the clause. This need not necessarily have been the case. The matter would never have gone to court had the notice also been delivered by fax.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© , October 2009

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Sanjive Haldankar

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