COVID-19: Giving Notice When Postal Services Are Disrupted

Many contracts contain notice provisions, some more detailed than others. Usually, we pay them little heed - glossing over them as "lawyer's boilerplate". But times are different now. Disruption to workplaces and postal services means the approach your contract takes to notice provisions may determine whether you are protected or exposed. What are the pitfalls? And what can you do?

Much will turn on the interpretation of the clause in question. This is an objective assessment, for which the starting point will typically be the literal wording of the contract. However, as modern case law demonstrates, appropriate weight must also be given to the wider contract, the factual background and the "commercial purpose" of the contract or provision.

In each case, it is necessary to balance these potentially competing principles although, in recent years, the courts have advised against disregarding the literal wording of a contract in pursuit of business common sense. Where there are two or more plausible readings of a contractual provision, commercial common sense will not always prevail where the natural meaning of the language used is clear, even if the result has unfavourable consequences for one contracting party. So, how can you be certain of your obligations under the contract?

We recommend you check closely the precise wording and specific requirements of the notice clause, and be clear whether the requirements for service are optional or mandatory, particularly if you are considering whether the workaround we suggest below is a viable alternative for you.

What type of notice is required?

"Simple" notice: This includes contractual provisions such as "the Buyer must give notice of their intention to complete...". If no specific method has been prescribed, such notice may in theory be oral, in simple written form, or by email. It is important, however, to be able to prove notice was given. If the recipient acknowledges it, there will be little doubt it will be effective, provided it otherwise meets the requirements in the contract. The notice must make it completely clear what is being notified.

"Formal" notice: This refers to notices such as ones prescribed by statute. The notice might have to be in a particular form, or with prescribed wording. Some bodies may be governed by a particular regulation (for example, notices by a regulator) that may or may not specify how and where it is to be served, including at the recipient's registered...