Notices by email – can contractual notices be issued online?

At the start of this year, if you wanted to issue a notice under a contract, you'd probably send a paper document. This would be despatched by Recorded Delivery to the recipient's registered office. Commercial parties are reassuringly familiar with this method. In many contracts the parties agree that using such a process irrefutably deems service of the notice to have taken place (typically two days later).

With many business premises temporarily closed, the likelihood of a notice "bouncing" is higher than ever. Deemed service clauses normally address this risk. However, where there is any doubt over the existence or application of such a deemed notice provision, with the potential that recorded delivery may not actually be effected due to the absence of the recipient, it may be advisable to consider an alternative method of service.

Most notice clauses only impose one absolute requirement - that the notice be in writing. The other aspects of the typical notice clause, such as those relating to how it is served, are usually optional. This gives the sender an open-ended range of options for sending their written notice, from courier to carrier-pigeon. If a notice clause requires service by a particular method, you should of course use this. Likewise, legislation might also dictate the method by which a notice must be served.

Absent constraints on service in either the contract or legislation, can a notice be sent by email instead?

Probably.

One risk is that it could be argued that "writing" means hard copy words either written or printed on a hard copy paper document. Electronic writing could be said to be insufficient. It seems unlikely the court will entertain such semantic arguments. Scotland's civil appeal court unhesitatingly accepted that an email constituted writing in the case of Our Generation Ltd v Aberdeen City Council. In that case, however, neither party tried to argue that an email couldn’t constitute notice in writing.

Another argument against email constituting writing can be found in the rules of contractual interpretation. The courts do not consider the meaning of the words at the time of the hearing or dispute. Instead, they consider what the reasonable person with all the relevant background knowledge would have understood the parties to have meant at the time the contract was concluded. If you have a contract (such as a lease) which was concluded in the early 1980s, can it seriously be contended that the parties meant "writing" to include "electronic writing"? With email in its infancy at that time, that might be a bit of a stretch.

Even if the court could be persuaded that an email isn't writing, the court may overlook this failure to comply with the terms of the contract. In HOE International Ltd v Andersen the court decided that in the absence of prejudice the court would be slow to hold that a notice which wasn’t issued in strict compliance with an agreement was invalid. If a notice is emailed to a company, instead of landing on their doormat, is there really any prejudice? That will always be a question for the individual case, but the starting point is likely to be that using email instead of post to send a notice isn't going to be prejudicial.

Whilst there's still lots that can go wrong with a notice – see our earlier blog on the Our Generation case – it's likely that email can be used to ensure notices are received. A key issue for senders is going to be identifying a suitable email address for the recipient. It would also be sensible to obtain both delivery and read receipts. This could be used as evidence to persuade a court that the notice has been both sent and received by the recipient.