Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE BURTON
Between :
ENER-G HOLDINGS PLC | Claimant |
- and - | |
PHILIP HORMELL | Defendant |
MR GEORGE BOMPAS QCand MR ADAM KRAMER (instructed by Stevens & Bolton LLP) for the Claimant
MR PETER McMASTERQC (instructed by BRM Solicitors) for the Defendant
Hearing dates: 5 December 2011
Judgment
MR JUSTICE BURTON :
This has been the hearing of a trial of a preliminary issue ordered by Blair J on 7 July 2011, arising out of an Agreement dated 2 April 2008 between the Claimant ENER-G Holdings plc and the Defendant Philip Hormell. The Agreement concerned the purchase by the Claimant from the Defendant of shares in a company for a price of several million pounds. Completion of the share sale was on 2 April 2008, and the parties specifically agreed that, although there was a number of representations and warranties in the Agreement, there would be a strict limitation period for the bringing of any claims based upon alleged breaches. This hearing and the preliminary issues relate to the proper construction of the provisions governing the imposition of such limitation. The significance is that the Claimant has brought proceedings alleging breach, and the Defendant has alleged that the Claimant is time-barred by reference to the contractual provisions, and so before the parties embark upon the substantial expenditure to be incurred by bringing and defending such claims, it has been agreed that the Court resolve whether the claims may be brought at all.
There were two hurdles, or triggers, for the bringing of such claims. The first, by Clause 6.3.3(b), was that the Claimant, as Buyer, must have given written notice of any such claim to the Defendant as Seller by the second anniversary of completion (on the facts here, 2 April 2010). The second requirement was, by Clause 6.3.7(a) that, where such notice had been given in respect of any claim, that claim should be deemed to have been irrevocably withdrawn and lapsed unless “proceedings in respect of that claim have been issued and served on the seller not later than the expiry of the period of twelve months after the date of that notice.”
The dispute before me has revolved around the construction and interpretation of the following clauses of the Agreement:
“13. NOTICES
13.1 Notice in writing
“Any notice or other communication under this Agreement shall be in writing and signed by or on behalf of the party giving it.”
13.2 Service
“Any such notice may be served by delivering it personally or by sending it by pre-paid recorded delivery post to each party (in the case of the Buyer, marked “for the attention of directors”) at or to the address referred in the Agreement or any other address in England and Wales which he or it may from time to time notify in writing to the other party.”
13.3. Deemed service
“Any notice delivered personally shall be deemed to be received when delivered (or if delivered otherwise than between 9.00am and 5.00pm on a Business Day, at 9.00am on the next business Day), any notice sent by pre-paid recorded delivery post shall be deemed to be received two Business Days after posting and in proving the time of despatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and posted.”
14. GOVERNING LAW AND JURISDICTION
…
14.2 Proceedings
“The parties agree that the documents which start any legal proceedings relating to a dispute (“Proceedings”) and any other documents required to be served in relation to those Proceedings may be served on any party in accordance with this Agreement. These documents may, however, be served in any other manner allowed by law. This clause applies to all Proceedings wherever started.”
The major dispute has revolved around the date, and consequent validity or invalidity, of the service of these proceedings, i.e. with regard to the satisfaction of the second hurdle. There is a subsidiary dispute about the effect of the first hurdle, which (though for different reasons) both parties accept was satisfied/surmounted. I shall not at this stage set out the Preliminary Issues as ordered.
The Facts
The material facts were not in dispute. They were the subject of witness statements by those on the Claimant’s side, including a process server, responsible for the delivery of the Notice and of the proceedings, and by the Defendant and members of his family, but the evidence in chief contained in such witness statements was not challenged, and the witnesses were not called.
2010
The Claimant arranged for a process server to deliver the relevant Notice within Clause 6.3.3, in writing, in accordance with Clause 13.1, addressed to the Defendant, 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. No one was at home when the process server attended on the afternoon of 30 March 2010, and he was at that stage unable to enter as far as the farmhouse where the Defendant and his family lived, which is within the cartilage of the farm. He was unable to obtain a reply, so he left the letter in the front porch on a table. Before 5pm that afternoon, the Defendant found the letter and opened it (and indeed communicated with his solicitors about it). On this basis, the Claimant asserts that there was due service of the Notice in accordance with Clause 13.2, because it was “delivered personally … at the address referred [to] in the Agreement”. Mr McMaster QC, for the Defendant, does not accept that this amounted to good service within Clause 13.2 (for reasons which will appear), but does accept that there was in any event good service of the Notice, since, on his case, Clause 13.2 is not the exclusive method for giving notice under the Agreement, and that, by virtue of the Defendant’s having received the Notice prior to 5pm, notice was given on that day, 30 March. For the avoidance of doubt, Mr Bompas QC relies in the alternative, as will appear, upon the fact that, on the same day, the same letter was sent by Recorded Delivery to the Defendant at Ringerlane Farm, which was deemed received, by virtue of Clause 13.3, on 1 April 2010. If notice was not validly given on 30 March, then, as a fall back, the Claimant would rely on that given on 1 April 2010.
On the basis that the relevant Notice was that given on 30 March 2010, then the time limit under Clause 6.3.7(a) expired on 30 March 2011. The Claimant asserts that that deadline was complied with, as I shall describe, by virtue of the leaving of the proceedings at the premises in the Defendant’s designated letterbox on 29 March 2011. If, however, that service is deemed invalid within Clause 13.2, then it would in any event constitute valid service of the proceedings within the CPR, and would lead to deemed service pursuant to CPR Part 6.14 two days later, namely on 31 March 2010. The consequence would be that if the 2010 service was on 30 March, this would be out of time. If the service of the Notice on 30 March was invalid and the Claimant could only rely on the registered post service on 1 April 2010, then the CPR service in 2011 would be valid.
2011
On 29 March 2011, the Claim Form, with the necessary Response Pack, was taken by a process server to Ringerlane Farm. By this time there had been changes at the Farm, and there was no longer access to the front door, where the process server had left the Notice the previous year. There was now a stone wall with locked access gates and CCTV cameras. At the gated entrance on the wall there was a letter box (but no doorbell or intercom). The process server, unable to enter – in any event it seems nobody was in – posted the documents into the post box (after making extensive efforts to find someone in the neighbourhood) at 4.20pm. The Defendant was away from home, and the documents were not in fact received by him until 2 April, when he emptied the letter box. The documents thus remained in the letter box from 29 March until 2 April. If it was sufficient to have delivered the documents to the letter box at Ringerlane Farm in order to comply with Clause 13 of the Agreement, then the proceedings were served on 29 March 2011, in time within Clause 6.3.7, being before the expiry of the period of twelve months from the service of the Notice on 30 March 2010. If, however, it was necessary for there to be service upon, and receipt by, the Defendant in person, then the Claimant was out of time.
Authorities
I am required to resolve the disputed construction of Clause 13. It is common ground that there are three significant canons of construction or interpretation for me to take into account, and that they may conflict in this case:
As recently reiterated by the Supreme Court in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, particularly at paragraph 21, per Lord Clarke, if there are two possible constructions of a document, the Court is entitled to prefer the construction which is consistent with business common sense and to reject the other (see also paragraphs 25, 29 and 30).
As enunciated by Robert Goff LJ in The Scaptrade [1983] QB 529 at 540-1 CA, it is of the utmost importance in commercial transactions that there is a need for certainty, so that parties can know where they stand and act accordingly.
That tight time deadlines, where time is of the essence, are not antipathetic to, but entirely appropriate in, commercial transactions, and where there are such deadlines, they should be construed strictly, or at any rate without softheartedness: unless there is some indication that time was not intended to have been of the essence, then (per Lord Nicholls in the Privy Council in Valentine’s Property Ltd v Hunto Corporation Ltd [2001] UKPC 14 at paragraph 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.”
There are three authorities of some relevance which the parties have drawn to my attention:
Mr McMaster referred to Kenneth Allison Ltd v A. E. Limehouse & Co [1992] AC 105, which was a case addressing the meaning of personal service in the then provisions of RSC. Order 65 Rule 2, namely that “Personal service of a document is effected by leaving a copy of the document with the person to be served”. Although, in the event, the House of Lords concluded that service on a personal assistant with a partner’s express authorisation had constituted valid service, this was because of the special agreement which thus took the mode of service outside the provisions of the Rules. That apart, such service was not personally service within the Rules, and Lord Bridge stated, at 113E, that, unless the person sought to be served refused to accept the document, “personal service requires that the document be handed to the person to be served”: Lord Goff, at 124C, tersely said “personal service means what it says”.
I was referred by both parties to Bottin (International) Investments Ltd v Venson Group plc [2004] EWCA Civ 1368. That too arose out of a dispute involving a share purchase agreement. The relevant clause (19) read as follows:
“Any notice, request, instruction or other document to be given under this Agreement to any of the Parties by any of the others shall be in writing and delivered personally or sent by prepaid recorded delivery post to their addresses set out in this agreement. Any Party may change the address to which notices are to be sent to it by giving written notice of the change of address to the other Parties in the manner provided for in this clause for giving notice. Any notice delivered personally shall be deemed to be received when delivered and any notice sent by prepaid recorded delivery post shall be deemed received 5 business days after posting.”
The material notice was delivered to the defendant’s registered office by leaving it with a receptionist. In the event, the Court of Appeal found that this was good service, because the Court upheld the judge’s conclusion that the receptionist had authority to receive the document, and there was thus sufficient delivery to a person. However, in construction of the clause (19), Peter Gibson LJ, giving the only substantive judgment, concluded (in paragraphs 45 and 46) that:
“the requirement in cl. 19 of personal delivery did not mean that Bottin personally had to effect the delivery [as the claimant contended] but that the adverb “personally” qualified the delivery to the recipient of the notice.”
there was “nothing in cl. 19 to require that the personal delivery to a party which is a company has to be at the company’s registered office, still less anything to suggest that personal delivery can be effected merely by leaving the document in question somewhere at the building which is the registered office. That gives no meaning to “personally”.”
Finally, there was Primus Build Ltd v Pompey Centre Ltd [2009] EWHC 1487 (TCC), 126 Con LR 26, a first instance decision of Coulson J, which neither Counsel sought to adopt and both sought to distinguish. In particular, as Mr McMaster pointed out, the context was the resolution of the issue as to whether an adjudication notice had been served in accordance with the provisions of the Construction Management Agreement, where the notice would have entitled enforcement of an adjudicator’s decision, and, as Coulson J pointed out at paragraph 14, “Technical points as to the service of documents in adjudications have not generally found favour with the courts.” The relevant adjudication clause in the contract was Clause 26, which provided:
“26.1 Any notice to be given hereunder shall either be delivered personally or sent by fax. The addresses or numbers for service of the Employer and the Construction Manager shall be those stated in Schedule 1 or such other address or number for service as the party to be served may have previously notified in writing to the other party. A notice shall be deemed to have been served as follows:
26.1.1 if personally delivered at the time of delivery, or
26.1.2 if sent by fax at the time of transmission.”
As can be seen, the clause provided for either personal delivery or sending by fax. The claimant posted the notice, and after its arrival at the premises by post it subsequently came to the attention of an appropriate individual within the defendant. Although Coulson J in fact found against the claimant on another ground, he took what both Counsel before me accept was a charitable approach. He concluded (in paragraph 18) that “‘personal delivery’ … meant something different from personal service, which is a well-known concept requiring the handing over of the document in question in a personal exchange between two individuals.”In paragraph 19 he decided that “‘delivered personally’ means the actual delivery by an appropriate individual within [the claimant] to a similarly appropriate individual within [the defendant]. The document in question must actually be delivered. The method of delivery does not matter, provided the document is actually delivered to the named address [pursuant to] clause 26.1”
Hence:
Coulson J concluded that “personal delivery” meant something different from “personal service”, and
this construction as to what amounted to personal delivery was affected by there being an express provision for an address, but
even though he was prepared to overlook the fact that the document arrived at the premises by post, he still concluded that it was necessary for the document to arrive timeously with an identifiable individual (cf paragraph 22 of his judgment).
The Claimant’s alternative case
Mr Bompas’s primary case is that there was good service of the proceedings within Clause 13.2, such that the Claimant was thus in time. His alternative case is that if he is wrong in his construction that it is not necessary for there to be service on a person and that delivery to the letter box at the premises is sufficient, then, for the same reason, the delivery in 2010 of the Notice to the table in the porch was also not good service: Mr McMaster is hoist on his own petard, and, there being no valid service of the Notice on 30 March, the Claimant is entitled to rely on the subsequent registered post which would (it is common ground) mean (as explained in paragraph 7 above) that the service in the letter box would, for CPR reasons, be good service on 31 March, and Clause 14.2 allows expressly for service “in any other manner allowed by law”, i.e. in accordance with the CPR, thus in time.
There was some dispute at the outset of the hearing as to whether the Claimant was entitled to run this alternative case by virtue of the formulation of the pleadings and the preliminary issue, but, in the course of such argument, Mr McMaster abandoned his opposition. However, he submits that he has a complete answer. There is no question of the Defendant’s being hoist on any petard, since the reason why the Notice in 2010 was valid had nothing whatever to do with its being compliant with Clause 13.2, indeed it was as non-compliant with Clause 13.2 as was the 2011 service in the letter box. His contention is that Clause 13 is not a provision which lays down an exclusive method of service or giving notice. In fact, the Defendant had notice in 2010, on 30 March, and discussed it with his solicitor (all before 5pm) (see paragraph 6 above) and notice to the Defendant can be, and was, good even though not in accordance with Clause 13.2.
Mr McMaster’s submissions are as follows:
The words of Clause 13.2 are plainly permissive – “any such notice may be served …”. This plainly leaves open other options, albeit that, in order to achieve certainty for the parties, an available provision to avoid dispute can be followed. This is consistent with the permissive wording of Clause 14.2, which allows for proceedings to be served in other ways. With some delight, he pointed to a concession in this regard in Mr Bompass’s skeleton argument, which Mr Bompass was compelled to withdraw.
Mr McMaster pointed out that the notices for the purposes of Clauses 6.3.3 and 6.3.7, relating to the enforcement of warranties and to subsequent proceedings, are not the only provisions in the Agreement which provide for the giving of notice or for communications between the parties. He referred to provisions requiring notification in Schedule 4 with regard to deferred consideration (paragraphs 5.1 and 5.2) and to requirements for the giving of information in relation to tax in Part 4 of Schedule 5 (at paragraphs 2.4 and 5.2). There is also the implicit requirement for notification of a change of address (in writing to the other party) provided for in Clause 13.2 itself. Clause 13 must be capable of being construed, if it is to be regarded as exclusive, as covering such notices and communications as well, otherwise, on his construction, they can proceed without reference to the Clause 13 regime: and Clause 13.2 would be a very heavy-handed mechanism for all such notices.
Specifically, by reference to the provision in Clause 13.1 that “any notice or other communications under this Agreement shall be in writing”, there is the provision in Clause 1.5.7 that “in writing” or “written” includes faxes, but does not include email. If there is a positive sanctioning of the giving of notice by email, which is not a method which is sanctioned, or at any rate mentioned, in Clause 13.2, which gives the two options of personal delivery at the premises or prepaid recorded delivery post at the premises, that supports his contention that Clause 13.2 is not intended to be exclusive.
Mr Bompas contends that Clause 13 is indeed the exclusive method (subject to the one expressed exception in Clause 14 with regard to proceedings only) for the giving of notices under the Agreement:
He accepts that the use of the word “may” would ordinarily suggest permissiveness, such that if the words “any such notice may be served” in a particular way stood alone, that would leave open the availability of other methods. However, he submits that the correct interpretation of Clause 13.2 is that the “may” applies only to the choice between the two methods. Thus he submits that the Clause could and should be interpreted as “any such notice must be served either by delivering it personally or by sending it by prepaid recorded delivery post.
This is supported by the proposition, by reference to The Scaptrade, that certainty is required, and the parties here laid down a procedure which they intended to be followed, avoiding the kind of disputes which can be shown to have arisen in such decided cases as Hamilton v Davies [1880] WN 82 (refusal by a servant to take in papers, there being no letter box); and Rose v Kempthorne [1910] 75 JP 71 (assault of a bailiff after disputed street service).
If, in accordance with Mr McMaster’s contention, there are available other methods of service, then issues as to the applicability of Clause 13.3 would arise. He submits that Clauses 13.2 and 13.3 create a discrete system, with both clauses addressing the dichotomy between personal delivery on the one hand and prepaid recorded delivery post on the other, suggesting that Clause 13.3 is dedicated towards resolving any issues of timing with regard to the only method of service, being that prescribed by Clause 13.2.
I prefer the submissions of Mr McMaster in this regard, and conclude that the provisions of Clause 13 are not intended to be exclusive as to methods of service of notices:
I am not persuaded by Mr Bompas’s exposition of how, on the particular construction of this Agreement, may must mean must.
The express provision for alternative possibilities of service in relation to proceedings in Clause 14.2 is not in my judgment the only exception to, or extension of, an otherwise mandatory system.
I am persuaded by Mr McMaster’s demonstration of the other kinds of notices that may be required under the Agreement, not all of which would be consistent with or amenable to the rigours of Clause 13.2, particularly not once it is apparent that notices can be given by fax, which, on the face of it, would have to be outside the provisions of Clause 13.2.
Mr Bompas’s understandable insistence that Clause 13.2 offers a procedural certainty for the parties does not lead on to a conclusion that that procedure must be exclusive. If a party wants to achieve such certainty, then it will follow the provisions of Clause 13.2 so far as possible. If it is prepared to take a risk, or in relation to a notice which is not subject to time being of the essence, then it may give notice in some other less formalistic way.
It does not seem to me to be a matter of concern that there may be some notices which, such as those delivered by fax, are not caught by the deemed service provision of Clause 13.3. I can see the force of Mr Bompas’s point that Clause 13.3 ties in with Clause 13.2, but if there are other notices which are delivered personally, even if not in accordance with Clause 13.2, then I see no reason why they should not be governed by the deemed service provision.
At the end of the day I find persuasive Mr McMaster’s simple proposition that – in the instant case of the events of 30 March 2010, where his client did receive and read and thus have notice of, the contents of the Notice left on the table on his patio on 30 March 2010, and even telephoned his solicitor and discussed such contents – it would be wholly contrary to common sense to suggest that he did not have notice. An argument to the contrary, by a party seeking to urge that Clause 6.3.3(b) was not, in those circumstances, complied with, would have a hard time of it in court.
I accordingly conclude that the service of the Notice on 30 March 2010 was good service, because the Defendant had notice of it (otherwise than through the mechanism of Clause 13) so that Mr Bompas’s alternative case fails, and if the service of proceedings in the letter box on 29 March 2011 (which did not come to the actual notice of the Defendant until 2 April) was not service within Clause 13.2, then the Claimant is out of time.
Construction of Clause 13.2
Mr Bompas’s contentions are as follows:
The provision in Clause 13.2 enabling the Notice to be served “by delivering it personally” does not connote that it must be delivered to a person. The option is for either delivering the notice personally, or sending it by recorded delivery post. Those amount to two alternative methods: either delivery by recorded post, or by hand, i.e. by a courier, process server, etc. Reference is to delivery by a person rather than delivery to a person. There is no point in the deeming provision in Clause 13.3 if that were not so. There is no purpose in deeming that “any notice delivered personally shall be deemed to be received when delivered” if ‘delivered personally’ means delivery to a person. The provision as to what happens after 5pm is plainly a subordinate provision and not the purpose of the Clause, because it is in parenthesis. Clause 13.3 matches Clause 13.2: a ‘by hand’ delivery is deemed to be received when delivered and a recorded delivery postal delivery is deemed to be received two business days after posting.
Clause 13.2 provides for personal delivery at an address or post to the address. There is no purpose in the provision for an address if it did not mean that delivery at that address would be sufficient – in this case delivery into the designated post box. The intended recipient may be away from home, but even so, delivery by hand at the address (or by registered post) is sufficient.
Mr Bompas recognises that the Court of Appeal decision in Bottin appears to stand in the way of this conclusion – see paragraph 10(ii) above – but he submits that this clause is a very different one from that in Bottin. In the relevant clause in that case there was no reference, in the context of the personal delivery, to an address: it is plain that the addresses there referred to were limited to the posting option. Peter Gibson LJ himself pointed that out in paragraph 46 of his judgment (referred to in paragraph 10(ii)(b) above). ‘Personal delivery’ under that clause could be carried out anywhere. In this clause however, Mr Bompas submits, the provision of the address in relation to both alternative options shows its importance, and underlines that what the clause is addressing is two alternative methods of delivery to the identified address – personal (by hand) or registered. Primus, with its anomalous conclusion about (otherwise unpermitted) post followed by personal receipt can be explained by the determination of the court in that case to avoid “technical points as to the service of documents”, and, insofar as it suggests necessity of a personal element, is, in any event, not binding upon this court. As Coulson J himself said, ‘personal service’ may be different from ‘personal delivery’, so that the dicta relating to the RSC in Allison are of no relevance
The provision for service at the address, by whichever of the two methods may be adopted, leads to certainty and avoids dispute (as illustrated by the cases in paragraph 14(ii) above) and resolves the problem of the absence from the designated address of the proposed recipient.
Mr Bompas relies upon the express words incorporated in Clause 13.2 to be used in the case of delivery to the Buyer (being a company), namely that the Notice must be marked “for the attention of Directors”, suggesting that it does not need to be put into the hands of anyone.
Mr McMaster responds as follows:
The Court of Appeal decision in Bottin, relating to construction of a very similar clause, in which there are the alternative options that the notice shall be “delivered personally or sent by prepaid recorded delivery post”, firmly rejects, as did the trial judge in that case, that ‘personally’ qualified the method of delivery, as opposed to the recipient of the notice.
The difference by virtue of the addition of the provision of the address did not affect the obligation of the delivery to be to a person. In any event, he submitted, the position is put beyond doubt in relation to this clause by the addition of the words “to each party”, i.e. so that the obligation under Clause 13.2 was either to deliver the Notice personally “to [either] party”, or to send it by recorded delivery post “to [either] party”, in either case at or to the relevant address.
He accepts that certainty is required, but submits that, if the (non-exclusive) procedure under Clause 13.2 is followed, certainty will still result. The recorded delivery post procedure plainly achieves certainty. As to any other method of delivery to the premises, there must be personal delivery to render it effective, but if the Notice in question is a Notice of proceedings, then the operation of the CPR will, as it would have done in this case, mean that leaving them at the premises would operate (2 days later) the deeming provision of CPR 6.14.
In response to Mr Bompas’s submission that this construction of personal delivery would render the deeming provision in Clause 13.3 otiose, or simply a statement of the obvious, there was exactly such a provision in the clauses in issue both in Bottin and in Primus, which did not cause the courts in either case to divert from their conclusion. Insofar as that can be addressed by submitting that the courts in those cases cannot have been addressed on this point, and that the absence of argument in those cases may enable this court to reach a different conclusion, Mr McMaster submits that meaning can in any event be given to the words. The provision that“any notice delivered personally shall be deemed to be received when delivered” can be given meaning by concluding that it is addressing a situation in which, although an envelope was handed to a person, it is alleged that its contents were not read, such that notice is to be deemed to be received when the notice is personally delivered i.e. before it is read.
The words with which a Notice, where delivered to the (corporate) Buyer, is to be marked, are in fact neutral. They can also be applicable and relevant where, in the case of the buyer, being a company, the Notice is handed to a person, but that person (such as the receptionist in Primus) is to be thus immediately alerted that the notice is intended to be brought to the attention of the directors (particularly as it is deemed to be received).
Conclusion
I have not found this decision an easy one, and have taken into account the principles referred to in paragraph 9 above. The most persuasive argument for Mr Bompas is that the incorporation of the procedure of the procedure in Clause 13.2, whether it is exclusive or not, must serve the interests of certainty, and the construction of the provision whereby it is necessary not only to deliver to the address but to find the person at that address may indeed lead to dispute and uncertainty, and although Clause 14.2 and the availability of the CPR 6.14 may resolve such disputes so far as proceedings are concerned, there will remain the possibility of dispute in relation to the service of, e.g. a 6.3.3(b) notice. I am also conscious of the drastic effect of the imposition of the deadline upon the party who fails to meet it, a miss being indeed as good as a mile. However:
As to this, there are other methods for giving notice, as I have concluded, quite apart from the secure process of recorded delivery, and the party seeking to give the notice will have had an entire two years (in the case of a 6.3.3 notice) or one year (in the case of proceedings) and has no need to leave it to the last minute.
I am persuaded by:
The relevance of the Court of Appeal’s decision in Bottin;
Mr McMaster’s answer to Mr Bompas’s point about the deemed service provision;
In the end and primarily the inclusion of the words “to each party” in Clause 13.2.
I conclude that, in order to adopt the first of the two optional methods in Clause 13.2, the Notice needs to be served by “delivering it personally to [the other] party at the address”.
I accordingly resolve the preliminary issues by concluding:
That the claims in this action were notified for the purposes of SPA 6.3.3 on 30 March 2010.
That the claim form and Particulars of Claim were served on the Defendant within the meaning of SPA 6.3.7(a) on 31 March 2011 by virtue of the operation of CPR 6.14.
The proceedings were not served within the twelve-month period and such claims must lapse in accordance with Clause 6.3.7.