24th March 2020
As businesses endeavour to carry on so far as is possible amid the disruption caused by the Coronavirus crisis, one area in which practical difficulties will need to be quickly overcome is the service and receipt of legal notices. Commercial dispute resolution specialists Gwendoline Davies and Nick McQueen offer their expert advice.
Legal and procedural traps for the unwary mean that the drafting and service of legal notices is a notoriously tricky area even in the best of times. The consequences of getting a legal notice wrong, or of missing immediate receipt of any notice served on your business, can be so significant that our advice is routinely that legal notices should be prepared or reviewed respectively, by experts in the field. In these unprecedented times, however, where the impact of the Coronavirus is forcing the closure of offices and other business premises, the practical difficulties associated with serving and receiving legal notices are brought even more sharply into focus.
Whether you are a business seeking to serve notices to terminate contracts, break leases, commence warranty or other claims, or similar; or whether you are a business concerned to ensure that any legal notices served upon you are received, reviewed and dealt with urgently and effectively, the following legal and practical advice should assist.
The immediate receipt and review of any legal notice served on a business is necessary for a number of reasons. For example, it will be essential, in every case, to ascertain the validity of any notice served, so that the business knows whether or not the notice has legal force. Where a notice is valid, it will inevitably be the case that some consequential action or decision will need to be taken by the business – usually within a strict period and often with time being of the essence.
The closure of business premises, not to mention potential disruption to postal and other delivery services, will cause significant practical difficulties when it comes to the receipt and urgent review of legal notices – not least in circumstances where a notice is deemed served at the point of posting (as opposed to at the point of receipt), which is very commonly the case.
So what can businesses do?
As is apparent from the above, most modern commercial contracts and leases contain detailed service of notice clauses which contain specific legal and procedural obligations and requirements. If those provisions are not strictly complied with, any notice can be invalidated. The consequences of that can be devastating for the serving party – for example where an invalid notice means that a once-and-for-all break option is lost, or a time-limited warranty claim is precluded.
A good tip, when it comes to the service of any legal notice, is to remember the mantra: who, when and how?
Immediately a party considers serving a notice, it should ascertain exactly:
Who is required to give notice and on whom the notice should be served. (Consider the party/counter-party itself? Legal representatives? Other agents? Have there been any assignments, novations or variations which change the position? What are the current names and addresses/contract arrangements for the relevant parties/agents?)
When the notice should be served, including whether there are any long-stop dates for service or for completion of any other conditional/procedural steps (such as commencing any follow-on court claims, or the like) .
The ‘how‘ is particularly important in the context of Coronavirus-related closures. It covers the content of the notice; the form of the notice and any strict procedural requirements; and the fact that service must be effected in accordance with any contractually specified method and at any contractually specified (or any new/recently agreed?) place.
The consequences of dealing with service or receipt of any legal notices can be too costly to gamble in the ordinary course of business – never mind in light of the additional legal and practical hurdles that arise from Coronavirus-related disruption.
The best advice is therefore for businesses to seek specialist legal advice at the earliest opportunity as to likely options or requirements for the service or receipt of notices over the next few months, so that suitable legal and practical preparation and planning can be undertaken.
For further information, advice and expert assistance, please do not hesitate contact Gwendoline Davies, Nick McQueen or any member of Walker Morris’ Litigation and Dispute Resolution department.
 Albeit parties should note the legal position if the contract/lease contains any anti-variation/no oral modification provisions. See our recent briefing for further information and advice
 It is also important to bear in mind, when calculating dates, that there may be different dates to ascertain. For example, depending on the nature and wording of the notice clause, you may need to know the date on which a notice actually has to take effect; the date by which it has to be served on (i.e. received by) the receiving party; and/or the date by which it has to be issued. All of those dates can be influenced by other factors (such as the required method of valid service; how long that will take; whether the contract designates when service will take place or whether the contract relies on external deeming provisions; whether there are any weekends/bank holidays to take into account and/or whether only working/business days count (which can differ across different countries); and so on.