Ener-G Holdings Plc v Hormell

This appeal is brought by ENER-G Holdings Plc (‘ENER-G’) against an order made by Burton J, following a judgment he gave on 14 December 2011, determining preliminary issues between ENER-G and Philip Hormell. The ultimate issue on this appeal is whether the Judge was right to hold that ENER-G is precluded from pursuing a claim for nearly £2m based on alleged breaches of warranties given by Mr Hormell in an agreement dated 2 April 2008 under which he sold certain shares to ENER-G (‘the Agreement’). The reason the Judge held ENER-G to be so precluded was because it failed to serve the claim form on Mr Hormell within the period specified by the Agreement.

By clause 6.3.3(b) of the Agreement, ENER-G, as ‘the Buyer’, had to give written notice (‘Notice’) of any breach of warranty claim to Mr Hormell, as ‘the Seller’, by ‘the second anniversary of completion’, i.e. by 2 April 2010. By clause 6.3.7(a) of the Agreement, where Notice had been given in respect of any claim,

The centrally relevant provisions of the Agreement for present purposes are clauses 13 and 14, which are concerned with service of documents under the Agreement. However, it is also right to mention clause 1.5.7, which provides that ‘[u]nless expressly stated to the contrary … “in writing” or “written” includes faxes but does not include emails’.

Clause 13 is headed ‘Notices’, and it is in these terms:

Clause 14 is headed ‘Governing Law and Jurisdiction’. Only clause 14.2 is relevant to the present dispute; it is headed ‘Proceedings’ and is in these terms:

Having decided that it had claims against Mr Hormell for breaches of warranty, ENER-G arranged for Notice under clause 6.3.3 of its claim for breach of warranties to be served on him in two different ways.

First, a process server was instructed to deliver a Notice (‘the first Notice’) in an envelope addressed to Mr Hormell, to his home address, being the address referred to in the Agreement (no other address having been notified pursuant to Clause 13.2), namely Ringerlane Farm, Elmton, Worksop, Nottinghamshire (‘Ringerlane’), which was a farmhouse. No one was at Ringerlane when the process server attended on the afternoon of 30 March 2010, so he was unable to obtain a reply, when he rang the bell. Accordingly, he left the envelope in the front porch on a table. Before 5.00 p.m. that afternoon, Mr Hormell found the envelope, opened it, and read the first Notice.

On the same day, 30 March 2010, an identical copy of the Notice (‘the second Notice’) was sent by Recorded Delivery in an envelope addressed to Mr Hormell at Ringerlane. It is common ground that this copy of the Notice was deemed received, by virtue of Clause 13.3, on 1 April 2010.

On 29 March 2011, a Claim Form (‘the Claim Form’) seeking damages for the alleged breaches of the warranties, with the necessary Response Pack, was taken by a process server to Ringerlane. As nobody was at home, the process server placed the Claim Form in the letter box serving the property at 4.20 p.m. As the Judge found, the documents were not in fact received by Mr Hormell until 2 April, when he emptied the letter box. Under CPR 6.14, it is common ground that this would mean that service of the Claim Form occurred on 31 March 2011.

By virtue of clauses 6.3.3. and 6.3.7(a), it is, rightly, common ground that ENER-G has to establish that (i) the Notice was served on or before 2 April 2010, and (ii) the Claim Form was served no more than one year after the Notice was served. Mr Bompas QC, on behalf of ENER-G, contends that his client can succeed on two alternative bases.

The first basis is that the first Notice was validly served, because it was ‘deliver[ed] personally …. at . . . the [relevant] address’ on 30 March 2010 under clause 13.2, as it was left at that address by an individual, namely the process server on that date. This proposition is challenged by Mr Lavender QC on behalf of Mr Hormell: he contends that the reference to ‘delivering personally’ in clause 13.2 means personal service, in the sense of given to the individual to be served personally, which it was not. However, if that contention is wrong, and ENER-G’s interpretation is right, then it is common ground that the Claim Form was served in time, because it was delivered to the same address by a process server on 29 March 2011, and that would have been valid service as clause 14.2 permits service of the claim form to be effected, inter alia, by any manner permitted by clause 13.2.

The second basis on which Mr Bompas puts ENER-G’s case is that, if ENER-G is wrong on the first point, then the only way in which a Notice can be validly served under the Agreement is in strict compliance with clause 13.2. On behalf of Mr Hormell, Mr Lavender challenges this argument on the ground that the service of the first Notice was valid even though it was not in accordance with clause 13.2. If ENER-G is correct on that issue, then the first Notice was not served and was therefore ineffective, but the second Notice was served and was therefore effective, and, on that hypothesis, it is common ground that the Claim Form was served in time, as the second Notice was deemed served on 1 April 2010, and the Claim Form was deemed served on 1 April 2011.

For completeness’s sake, Mr Hormell’s case is thus that the first Notice was effectively served on 30 March 2010, because, although it was not served in accordance with clause 13.2, that clause does not set out an exclusive code, and therefore the Claim Form was served too late as it was deemed to have been served on 31 March 2011 (see clause 14.2 and CPR 6.14).

Accordingly for ENER-G to win this appeal, the court must be satisfied either that ‘delivering [the Notice] personally’ did not require it to be handed personally to the intended recipient, or that the two methods of service set out in clause 13.2 are exclusive and no other means of service of a Notice will be effective (unless the server can invoke estoppel or the like, which does not arise here). The Judge rejected both these arguments. I shall consider them in turn.

The first of the two issues to be decided is whether the first Notice was ‘deliver[ed] … personally … at … [Mr Hormell’s] address’, within clause 13.2. As explained in para 11 above, Mr Bompas, for ENER-G, contends that it was, because it was left there on 30 March 2010, by a person, namely a process server instructed by ENER-G, whereas Mr Lavender, for Mr Hormell, contends that it was not, as the relevant words required personal service of the Notice on Mr Hormell. If Mr Bompas is right, it was enough for the envelope containing the first Notice to have been left by the process server at Ringerlane on 30 March 2010, and the fact that Mr Hormell actually opened the envelope on that day is irrelevant. If Mr Lavender is right, the fact that Mr Hormell opened the envelope on 30 March 2010 is also irrelevant, as it was not handed to him.

Like the Judge, I prefer the argument advanced on behalf of Mr Hormell. First, there is the natural meaning of clause 13.2 in its context. Although in normal social parlance, ‘delivering’ a document ‘personally’ would often be understood to mean service by the sender personally, I do not consider that that is the natural meaning in a provision such as clause 13.2. After all, in the case of a notice on behalf of Mr Hormell, this would mean that Mr Hormell would have to deliver the Notice: that cannot be right, and is not suggested by Mr Bompas. So the normal social meaning cannot be invoked.

Secondly, the concept of ‘personal service’ is well understood to mean service on the recipient personally, not service by the server (or anyone else) personally – see e.g. per Lord Bridge and Lord Goff in Allison Limited v Limehouse & Co [1992] AC 105, 113 and 124 respectively. Although it is true that the well known expression ‘personal service’ has not been used, it seems to me that the legally familiar concept of personal service is redolent in the relevant words of clause 13.2. The reason why the word ‘delivering’ rather than ‘serving’ is used in clause 13.2 is that having used the word ‘served’ as a gENERic term, it was then thought appropriate to distinguish between two types of service, namely, handing over (‘delivering’) and posting (‘sending’).

Thirdly, where parties are concerned to prescribe how a notice may be served or delivered, the identity of the server of the notice is rarely, if ever, important, whereas the identity of the recipient is, at least normally, of central importance. The law and common sense both support the notion that if ‘personal’ service or delivery of a document is required, it should be handed to the intended recipient personally.

Fourthly, if Mr Bompas is right, the parties were concerned enough to require any notice to be delivered by someone ‘personally’ without caring who that person was, whereas, on Mr Lavender’s approach, the ‘person’ is of central importance.

Fifthly, the word ‘personally’ adds very little or nothing to the relevant part of clause 13.2 on Mr Bompas’ approach, because any document has to be served by an individual (save perhaps if it is sent by email or fax). Even a notice sent by post is delivered by a postman.

Sixthly, my conclusion is consistent with the reasoning of this court in a case decided on a similarly worded provision. Bottin (International) Investments Ltd v Venson Group Plc [2004] EWCA Civ 1386 concerned an agreement with a clause which required any notice or other document required to be given under the agreement to be ‘delivered personally or sent by prepaid recorded delivery to [specified addresses]’. Peter Gibson LJ, with whom Longmore LJ and Lindsay J agreed, said that the clause ‘did not mean that Bottin personally had to effect the delivery but that the adverb “personally” qualified the delivery to the recipient of the notice’ – [2004] EWCA Civ 1386, para 45. Peter Gibson LJ then referred to the view ‘that a document is personally served on a company if the document is simply left at the registered office, without any need to consider into whose hands, if any, it is delivered.’ At [2004] EWCA Civ 1386, para 46, Peter Gibson LJ said that ‘personal delivery of a notice to a company is effected by delivering it to somebody authorised to receive it.’

Of course, the same word or expression can have different meanings in different contexts, but there is little difference between the context of the relevant words in Bottin [2004] EWCA Civ 1386 and the relevant words in this case. Mr Bompas rightly points out that, in this case, the notice has to be delivered personally ‘at’ the relevant premises (sc. Ringerlane), whereas in Bottin [2004] EWCA Civ 1386 there was no restriction as to where personal delivery was to be effected. More specifically, he makes the point that it would have been peculiar for the parties to restrict where personal service can be effected. I see the force of that, but it is not a powerful point, because it is far from absurd, or even capricious, for the parties to have so limited the locations where personal service could be effected. Such a restriction merely renders it easier for the intended recipient to avoid personal service. But the recorded delivery process was an obvious alternative.

Mr Bompas also suggested that his interpretation of the personal delivery provision in clause 13.2 required a notice to be served at the stipulated premises in the same way as, and consistently with, the alternative recorded delivery provision in the clause. I do not agree: if a notice is sent by recorded delivery, in an appropriately addressed envelope, it is deemed to be served even if it is not actually received by the intended recipient, whether at the premises or elsewhere - see per Megaw LJ in Chiswell v Griffon Land & Estates Ltd [1975] 1 WLR 1181, 1188-9, per Slade LJ in Galinski v McHugh (1988) 57 P&CR 359, 365 and per Robert Walker LJ in Blunden v Frogmore Investments Ltd [2002] EWCA Civ 573, [2003] 2 P&CR 84, paras 42-5. However, even of that were not right, I do not see why one should assume that the two stipulated forms of delivery were intended to have the same physical outcome.

Mr Bompas also relied on the words ‘“marked for the attention of the Directors”’ in clause 13.2, as showing that personal service was not intended. However, following the reasoning of Peter Gibson LJ in Bottin [2004] EWCA Civ 1386, service of the envelope on an authorised agent of ENER-G would do, so it would be sensible to make it clear that the envelope contained something the directors should see. Mr Bompas also relied on the ease with which a person could avoid service. I do not see that as providing much help to ENER-G’s case either. A requirement of personal service on the intended recipient at a specified address seems unexceptionable, where there is an easy alternative of sending by recorded delivery to the same address.

The second issue is whether it was open to ENER-G to serve the Notice in a manner different from that described in clause 13.2. In other words: are the methods of service in clause 13.2 exclusive or permissive? Unusually, it is ENER-G, the server of the document in question, who is contending that the contractually prescribed methods of service are exclusive, and it is the intended recipient of the document, Mr Hormell, who is contending that they are permissive.

The Judge held that the methods of service set out in clause 13.2 were no more than permissive, and, although I have not found the point easy, I have reached the same conclusion.

The notion that clause 13.2 was intended to be permissive rather than exclusive, receives obvious support from the fourth word of the clause, ‘may’, particularly when it is contrasted with the mandatory word ‘shall’ in the immediately preceding clause 13.1. The force of the point is only slightly diluted by the fact that clause 13.2 envisages two alternative means of delivery: the word ‘shall’ would have been quite appropriate if it had been intended to be exhaustive.

I consider that some support for this conclusion is to be found in clause 1.5.7, with its statement that ‘[u]nless expressly stated to the contrary … “in writing” or “written” includes faxes …’. There is nothing in clause 13.2 which appears to exclude clause 1.5.7, and, if delivery by fax is permitted, it would seem to be inconsistent with the notion that the two prescribed methods of delivery in clause 13.2 were exclusive. I accept that it can be said that, if clause 13.2 does permit delivery only by the two specified methods, then delivery by fax is ‘expressly’ precluded, but it seems to me that, if one is looking to find the intention of the parties, clause 1.5.7 does provide mild assistance to Mr Hormell’s case.

The argument that it would have been pointless to spell out two methods of service in clause 13.2, unless they were intended to be exclusive, has some initial attraction. However, in my view, on closer analysis, the argument has no force. The purpose of a provision such as clause 13.2, if it is not exclusive, is to shift any risk from the server to the intended recipient - see per Robert Walker LJ in Blunden [2003] 2 P&CR 84, paras 27-8. Thus, if a document is served in accordance with clause 13.2, it is treated as served, or delivered, even if it does not come to the attention of, or even if it is not received by, the intended recipient (see the cases cited at para 23 above). But if a document is served or delivered in any other way (e.g. by ordinary post or by being left at the intended recipient’s premises rather than being handed personally to him), there is no such presumption.

That argument works perfectly well for the provision for sending by recorded delivery. However, at least at first sight, it is unnecessary for personal service: there would appear to have been no need for any presumption in such a case, as personal service, once established as a matter of fact, will always be effective. I consider that the answer to that point lies in the fact that personal delivery of a document on ENER-G might involve the document not coming to the attention of the directors, as it would encompass delivery on a non-director who had actual or ostensible authority to accept service (see per Peter Gibson LJ in Bottin [2004] EWCA Civ 1386, para 46, cited in para 21 above). If a document was personally delivered to such a person, who then failed to pass on the document to a director, clause 13.2 would make it clear that service had been effected.

In my judgment, commercial common sense also assists Mr Hormell’s argument. If ENER-G had not sent the second Notice by recorded delivery, it would have been very unattractive for Mr Hormell to argue that ENER-G’s right to claim on the warranties was lost by virtue of no Notice having been delivered within the two year period prescribed by clause 6.6.3(b). The purpose of providing for the Notice was to ensure that Mr Hormell was notified within the two year period of a warranty claim, so that he would know that he was free of any such claim if he received no such Notice within the two year period. As he saw the first Notice within the two year period, that aim would have been achieved even without the second Notice.

In my view, clear words would normally be required before one could ascribe to the parties an intention that a recipient who actually receives a notice in time should nonetheless be treated as not having received the notice at all. In this case, the point is rather reinforced by the point mentioned in para 23 above, namely that, if a notice is sent by recorded delivery to the prescribed address, it is deemed to have been served, even if it is not actually received. If that is right, it would seem a little curious to ascribe to the parties an intention that a notice sent or delivered in another way was, in the absence of clear words, deemed not to have been served, even though it was clear that, as a matter of fact, it had been received and read by the intended recipient.

Accordingly, there is a strong commercial argument, as well as a strong argument based on the language of the Agreement, for saying that the first Notice was delivered when Mr Hormell saw it. If that is right, then the fact that ENER-G delivered the second Notice, cannot, as it were, retrospectively cause the first Notice not to have been validly delivered.

Further, while reliance on previous judicial decisions on this sort of point has obvious dangers, I consider that this conclusion derives some support from the reasoning of the Court of Appeal in Yates Building Company v RJ Pulleyn & Sons (York) Ltd [1976] 1 EGLR 157. In that case, it was unanimously held that a notice exercising an option, sent by ordinary post, was valid, even though the contractual provision, after requiring the option to be exercised by notice in writing’, continued ‘such notice to be sent by registered or recorded delivery post’. Lord Denning MR, with whom Orr LJ agreed, described the latter provision as ‘directory’ rather than ‘mandatory’. I have no doubt that Scarman LJ’s characterisation of the provision as ‘permissive’ rather than ‘obligatory’ (see at [1976] 1 EGLR 157, 158) is to be preferred. In a sense, the present case is a fortiori, because that case concerned an option, and the contractual requirements of an option are gENERally more strictly construed than those of other contractual rights (see United Scientific Instruments Ltd v Burnley Borough Council [1978] AC 904).

However, there are arguments the other way, and it is necessary to address them. First, there is the fact that clause 13.3 would result in a document served in accordance with clause 13.2 being, at least potentially, served later than a document served other than in accordance with clause 13.2. Thus, at first sight at any rate, it would seem to be a little odd that a document sent by ordinary post might be delivered the day after it was sent, but one sent by recorded delivery would be treated as delivered two days after it was sent. In my view, the answer to that point is that, if the server of a document wishes to take advantage of the risk transfer, or the irrebuttable presumption of service, conferred on him by clause 13.2 (as discussed in paras 29-30 above and by Scarman LJ in Yates [1976] 1 EGLR 157, 158), part of the price is the consequence of the presumed date of delivery as set out in clause 13.3.

If the server wants to take advantage of the deemed delivery by serving in accordance with clause 13.2, he takes the consequences as to deemed date of delivery in clause 13.3; whereas if the server chooses to deliver in some other way, he has to prove service (rather than relying on deeming) and has to prove the date of service (again, rather than relying on deeming). I see nothing surprising about this, although it is fair to say that it may produce somewhat oddly contrasting results on comparing particular hypothetical sets of facts. Further, clause 13.3 can produce somewhat odd results on any view: it appears that, if a document is personally delivered before 9.00 a.m. on a particular day, it is deemed to be received the next day, whereas if it is personally delivered between 9.00 a.m. and 5.00 p.m. on a particular day, it is deemed to be received on that day.

It can also be said that the word ‘however’ in the second sentence of clause 14.2 implies that the methods of service described in clause 13.2 (as impliedly referred to in the preceding sentence) were envisaged as being exclusive, as, otherwise, the word would not have been included. In my view, that is not a strong point, as the word ‘however’ is not inconsistent with the notion that clause 13.2 is permissive.

There is also something in the point that it accords with commercial common sense to make it clear that service of documents can only be served in certain specified ways. The point has added force in a case such as this when the date of service of a Notice acts not merely to give rise to a right, but also to start time running against the server in relation to another step (namely service of a Claim Form). However, I find the commercial common sense argument the other way rather more telling – see paras 29-32 above. In any event, clause 13 does not only apply to a Notice under clause 6.6.3(b). Further, even in the case of such a Notice, it is up to the person who delivers the Notice to make sure (i) that he knows when the notice was delivered, and (ii) that the Claim Form is served properly and in time, both being matters which are wholly or largely within his control. If, as in this case, he leaves service of the Claim Form to the last minute, he only has himself to blame.

Accordingly, I agree with Burton J that (i) the first Notice was not ‘deliver[ed] … personally’ within the meaning of clause 13.2 on 30 March 2010, and neither was the Claim Form ‘deliver[ed] … personally’ on 29 March 2011, but that (ii) the first Notice was nonetheless validly served on 30 March 2010 and the Claim Form was deemed to have been served on 1 April 2011.

I have considered whether it might be argued that, even though the first Notice was validly served by it having been left at Ringerlane and received and read by Mr Hormell on 30 March 2011, it was nonetheless open to ENER-G to contend that, having served the second Notice strictly in accordance with clause 13.2 on 1 April 2011, it was entitled to treat the second Notice rather than the first Notice as the effective notice under clause 6.6.3(b). That was not a point argued by Mr Bompas, although it was raised during the hearing by Longmore LJ. I have concluded that it cannot be sustained: if the first Notice was validly served, then there was no room for a second Notice, not least because a second notice cannot retrospectively invalidate, or cancel, an earlier notice, valid when it was served.

For these reasons, I would dismiss ENER-G’s appeal.

I agree with the Master of the Rolls that the words “delivering it personally” mean that the notice must be served on the person of the recipient and not that it must be served by a personal deliverer.

I have not found the question of exclusivity (as it has been called) easy to decide but I have concluded that the judge was wrong not to have construed clause 13.2 of the contract regarding the methods of service of any notice (such as that required by clause 6.3.3 of the share sale contract) as exclusive.

My main reason is that it is counter-intuitive to conclude, when the parties have taken the trouble to spell out (a) that a notice given under the agreement can be served

either “by delivering it personally”

or “by sending it by pre-paid recorded delivery post”

Mr Lavender for the defendant relied heavily on the use of the word “may” in clause 13.2 in contradistinction to the word “must” or “shall” as used in other clauses of the contract, notably in clause 13.1 which provides that “any notice shall be in writing”. That argument has some, but by no means conclusive, force; it is clear that a notice has to be in writing but if one is then providing for service of such a notice in two possible ways, it is a natural use of language to say that the parties “may” use one method of service or a second method of service. Such expression does not mean that it is not compulsory to use one method or the other.

Burton J made the powerful point that if the claimant had just left the notice on the table in the porch (without also sending it by recorded delivery) and if the notice had actually come to the attention of the defendant (as it did in this case) shortly after being so left and the defendant claimed that he had not been properly served with the notice so that no claim could be brought against him, “he would have a hard time of it in court”. But I respectfully wonder about that; one can always propose hard cases where, on different facts, a harsh result apparently ensues. The defendant could always say that a claimant who has two years within which to serve a contractual notice and always has the fall-back of sending it by recorded delivery has only himself to blame if he chooses to try to serve by some other method which (for whatever reason) does not contractually work out.

It seems to me that the judgment, with respect, produces the rather more perverse consequence that the actual method of service which was not contractual (because not served on the defendant personally) effectively becomes a contractual method once it has come to the notice of the defendant and therefore operates as a trigger for the second period (within which proceedings have to be served pursuant to clause 6.3.7) at a time of which the claimant cannot be aware, with the result that his claim is unexpectedly barred because the year allowed has begun before the year allowed by the second (contractual) method of service.

For myself I am not influenced by decided cases about contractually prescribed methods of making offers or communicating acceptances or exercising options because they relate to the making (or otherwise) of contracts. I do not see why the law in that area should be transposed to notices given pursuant to contracts already made. Traditionally and understandably the law is stricter about the service of documents (or at any rate proceedings) than it is about the transmission of offers and acceptances. I would therefore distinguish Yates Building Co. v R J Pulleyn & Sons (York) Ltd [1976] 1 EGLR 157 on which the Master of the Rolls places some reliance. Indeed I did not understand Mr Lavender to argue that the matter was concluded by authority which (after all) businessmen are unlikely to know much about, see BCCI v Ali [2002] 1 A.C. 251 para 51 per Lord Hoffman.

Left to myself therefore, while acknowledging the force of my Lord’s conclusion and that of the judge, I would have allowed this appeal.

I gratefully adopt the summary of the provisions of the Agreement and the facts contained in the judgment of the Master of the Rolls.

On the question of the meaning of the words “delivering it personally” in cl. 13.2 of the Agreement, I agree with both the Master of the Rolls and Longmore LJ and there is nothing I can usefully add. It follows that the appeal must be dismissed unless the Appellant is entitled to succeed on the “exclusivity” question.

With regard to that question, I find myself in an invidious position, given that the Master of the Rolls and Longmore LJ disagree as to the answer. Like them, I have not found the point easy.

The rival cases were, if I may say so, clearly and attractively articulated by Mr. Bompas QC for ENER-G (the Appellant) and Mr. Lavender QC for Mr. Hormell (the Respondent).

Mr. Bompas submitted that the methods of service set out in clause 3.2 were exclusive. The consequence was that the 12 month period provided for in clause 6.3.7 started later, on the 1^st April, 2010, so that the Claim Form was served in time, on the 31^st March, 2011. In essence, Mr. Bompas submitted that in clause 13.2 of the Agreement, the parties had carefully stipulated for two modes of service, reinforced by the provisions of cl. 13.3. It was implausible that the parties would have constructed this detailed scheme if the modes of service were no more than permissive. Further, the wording of clause 14.2 lent support to the Appellant’s case. The additional flexibility provided for the service of documents starting or relating to legal proceedings (e.g., the Claim Form) and the service of notices or other communications (e.g., the 2010 First and Second Notices) was stark. The former, not the latter, could be served “in any other manner allowed by law” rather than “in accordance with this Agreement”. It is common ground that if Mr. Bompas is right on the exclusivity question, then the appeal must be allowed.

Mr. Lavender submitted that the Judge was right; the methods of service set out in clause 13.2 were no more than permissive. Accordingly, time started running on the 30^th March 2010 and the purported service of the Claim Form, on the 31^st March, 2011, was out of time. The word “may” in clause 13.2 told decisively against the argument for exclusivity. “May” did not mean “must”; contrast, for instance, the word “shall” in clause 13.1. It did not follow that clauses 13.2 and 13.3 were deprived of meaning. To the contrary, a party, following either mode of service for which express provision was made, obtained “copper bottomed” protection (or a “safe harbour”) against the risk of the document in question not actually coming to the attention of or being received by the intended recipient. Even if, which Mr. Lavender sought to resist, clause 14.2 furnished a pointer in favour of exclusivity, it could not outweigh the impact of the permissive word “may”. Mr. Lavender further submitted that the Respondent’s construction enabled meaning to be given to the provision contained in clause 1.5.7 as to delivery by fax. Still further, although on the facts of the present dispute, the conclusion that clause 13.2 provided for exclusive modes of service would mean that the proposed claim was not time barred, there would be other situations when it would lead to a very different and unattractive outcome: for instance, it would mean that service of a notice could be out of time, simply because of the use of some other mode of service and even though the intended recipient had, as a matter of fact read the notice and was aware of its contents. Indeed, it was on that very footing that the Appellant’s argument for a later start to the clause 6.3.7 period depended.

(1) Preliminary matters: I begin with a number of preliminary matters which inform my consideration of the exclusivity issue.

First, as was common ground, the approach to the construction of the Agreement was that set out in Rainy Sky v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900. It suffices to refer to two passages in the judgment of Lord Clarke of Stone-cum-Ebony:

“ 14. …..the ultimate aim of interpreting a provision in a contract, especially a commercial contract, is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant…..

21.

The language used by the parties will often have more than one potential meaning. I would accept the submission ….that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. ”

Elaboration is unnecessary, save to observe that one of the difficulties in the present case is that considerations of business common sense can properly be relied upon for each of the rival constructions.

Secondly, as observed by the Judge (judgment, at [9 ii)]), certainty is important in commercial transactions, so that parties can know where they stand and act accordingly. Strict time bars are an aspect of certainty; there is certainly nothing uncommercial about them and they are not infrequently encountered in commercial contracts. When there is a time bar, then, as Lord Nicholls observed in Valentines Properties Limited v Huntco Corporation Limited [2001] UKPC 14, at [20]

“ Inherent in a time limit is the notion that the parties are drawing a line. Once the line is crossed, a miss is as good as a mile.”

Mr. Bompas, rightly, disclaimed any suggestion of seeking sympathy as to the operation of clause 6.3.7(a); his submissions were instead exclusively focused on the proposition that service of the proceedings was just in time, not just too late.

Thirdly, despite the desirability and importance of certainty, a good many commercial contracts are less tidy than might be desirable as a matter of strict theory. In this respect, commercial contracts reflect the realities of commercial life. It is thus no surprise to find in a commercial contract surplus language, for instance that which merely states the obvious. Likewise, it is by no means uncommon to find that whichever of two rival constructions is preferred, anomalies or apparent anomalies will remain. The present case is no exception, as the judgments of the Master of the Rolls and Longmore LJ readily allow. The task, accordingly, is to ascertain which construction best, if imperfectly, fits the language used by the parties in the context in which the Agreement is located.

Fourthly, if I may be permitted to put it this way, the purpose of a notice provision is to give notice – i.e., to require the intended recipient to be made aware of the facts and matters in question. However, it by no means necessarily follows from the intended recipient having actual knowledge of such facts and matters that he has been properly served; thus, to take an example removed from the facts of this case:

“ If a claimant is required to serve X and, mistakenly purports to serve Y, the mere fact that Y informs X of the purported service so that X knows of it, cannot convert Y’s receipt of the documents into good service upon X.”

See Lantic Sugar Ltd v Baffin Investments [2009] EWHC 3325 (Comm); [2010] 2 Lloyd’s Rep. 141, at [40]. The example of course serves to illustrate why pleas of hardship in this area are untenable. Conversely, however, there is much to be said for reducing the risk of a person, who has actually received a notice and become aware of its contents, asserting that he has nonetheless not been properly served. A construction which serves to reduce this risk may be thought to have obvious attraction as giving effect to the underlying commercial purpose of any typical notice provision.

(2) Decision: Very much on balance, respectfully parting company with Longmore LJ but in agreement with the Judge and the Master of the Rolls, I have concluded that clause 13.2 is permissive rather than exclusive as to the modes of service there specified. My reasons follow.

First, I begin with the language of clause 13.2. Here, I do regard the use of the word “may” as striking. As clause 13.1 so clearly illustrates, the parties knew how to say “shall” when they intended to do so. While it is true that “may” foreshadows two specified modes of service and thus there is nothing unnatural about its usage, it is also true that “shall” or “must” would have served equally well. Moreover, either “shall” or “must” would have conveyed the exclusivity of the modes of service in question, had that been the parties’ intention. For my part, I am unable to read “may” as meaning “must”, at least unless persuaded by other language in the Agreement or its commercial context that I should do so. At all events, I regard the use of the word “may” as a most powerful pointer to the permissive rather than exclusive nature of clause 13.2.

Secondly, I seek to test my provisional view of clause 13.2 as permissive having regard to the Agreement as a whole.

Thirdly, I turn to questions of context and business common sense. On the one hand, I acknowledge the attraction of the Appellant’s argument as promoting certainty. If clause 13.2 is exclusive as to modes of service, there would be greater certainty as to the start and, hence, the finish of the 12 month period provided by clauses 6.3.3 (b) and 6.3.7 (a). As already foreshadowed, that is a point of significance. It remains so - even though it can also fairly be said that it is not asking too much of the Appellant to issue and serve proceedings within a hardly ungENERous period of 12 months and to err on the side of caution having regard to the very limited range of possible dates when time could realistically start to count.

On the other hand, there is, for my part, the yet more persuasive argument that exclusivity requires clear wording because of the consequences which can follow. Exclusivity entails that, regardless of the actual knowledge of the intended recipient, any mode of service other than those specified in clause 13.2 will not suffice. The Court will of course give effect to exclusivity – notwithstanding the consequences – if indeed that is the bargain the parties have made; however, as already foreshadowed, there is no such clear wording here. Turning to the consequences, it is to be acknowledged that, on the facts of the present case, if clause 13.2 provided for exclusive modes of service, the Appellant would not be time barred from proceeding with its proposed claims. But, in other, readily conceivable, factual situations, the consequences could be much less attractive. As illustrated by the Judge (judgment, at [16]), treating clause 13.2 as exclusive would facilitate a party asserting that the initial clause 6.3.3 (b) notice was out of time despite actual receipt of the document and full knowledge of its contents. For reasons I have already sought to adumbrate, a construction which reduces the risk of such an outcome has much to be said for it. In my view, absent clear wording providing for exclusivity, this consideration strongly favours a permissive construction of clause 13.2 – and, especially when considered together with the very considerable significance of the use of the word “may” in clause 13.2, it serves to tilt the balance in favour of the Respondent’s case on the appeal.

Accordingly, treating the task of construction as a “unitary exercise” (Rainy Sky, supra, at [21]) and broadly for the same reasons as the Judge and the Master of the Rolls, the better view is that clause 13.2 of the Agreement is permissive rather than exclusive with regard to modes of service. It follows that I would dismiss the appeal. I am conscious that the consequence of doing so is that the Appellant’s proposed claims against the Respondent are time barred but I fear that by leaving service until so late in the day, the Appellant has been the author of its own misfortune.

For completeness: