Don’t get caught out by notice rules; the law is unforgiving

Serving notice under a statute or a contract is a critical process that ensures the notice is legally effective and all parties are informed of important decisions and events, such as breaches, terminations, or changes in terms. 

Properly serving notices under a statute or contract can avoid potential disputes later on. For example, if you fail to serve a break clause notice in accordance with a lease, it will be invalid, and you will be trapped for the full term of the lease.

This article outlines the necessary steps you should take to ensure you successfully serve your notice.

1. Understand the Contractual/Statutory Requirements

Identify the Type of Notice:

• Determine the type of notice you need to serve and the correct name and address for the recipient. Common types include notice of breach, termination, renewal, or change in terms. Each type may have different requirements and implications.

Review the Contract/Statute:

• The next step is to thoroughly review the contract/statute to understand the specific requirements for serving notice. Contracts often contain a “Notice” clause that outlines the method, timing, and address for serving notice. Failing to follow all of these requirements will likely render the notice invalid. For instance, it may be necessary to serve a specific address by registered post. The contract/statute will also say how long it will take to be deemed served after you post it. This will be critical in making sure the notice is on time.

2. Methods of Serving Notice

Written Notice:

• Most contracts require written notice. Pay attention to the method required by the contract, which may include:
  • Post: This could be first class post, recorded delivery, or some other method – follow the contract.
  • Email: Some contracts allow for electronic notices, but ensure that the contract expressly permits this method. Often, contracts may allow email delivery but also require a follow-up notice by post within a specified number of days.
  • Personal Delivery: Ensure you obtain a signed receipt from the recipient or other evidence of delivery.

3. Timing and Deadlines

Adhere to Deadlines:

• Contracts often specify deadlines for serving notice. Missing these deadlines can result in waiving your rights or other legal consequences. Mark these dates clearly and plan accordingly. Be careful to read the deemed dates that the notice is served, not just when you email, post or deliver. You need enough time for the post or other method or service to be deemed effective under the contract/statute.

Notice Period:

• Some notices require a specific notice period (e.g. 30 days before termination). Ensure you serve the notice well within this period including any time required between you transmitting and it being deemed received to avoid any disputes. However, the contract may not allow you to serve it too early. Again, read the details in the contract and comply with them. Also, understand how a period is calculated; check whether it is calendar days or business days and how business days are defined.

4. Content of the Notice

Clear and Concise Language:

• The notice should be clear, concise, and to the point. Avoid ambiguous language that could lead to misunderstandings.

Include Essential Information:

• Ensure the notice includes everything required by the contract/statute, and this can include:
  • The date of the notice.
  • The names and addresses of both parties.
  • A clear statement of the action being taken (e.g., termination, breach).
  • Reference to the specific contract clause being invoked.
  • Any required supporting documentation.

5. Proof of Service

Document Delivery:

• Keep detailed records of how and when the notice was served. This includes:
  • Copies of the notice.
  • Re-receipts for emails
  • Proof of mailing or delivery (e.g., certified mail receipt, courier tracking).
  • Acknowledgement of receipt from the recipient.

Follow-Up:

• If the contract allows, follow up with the recipient to confirm receipt and address any questions or concerns they may have.

Common Mistakes

• Getting the name, identity or address of the recipient wrong.
• Sending it by email instead of post
• Failing to understand the date you send the notice is very often not the date it is received
• Not understanding how the days in the period are calculated
• Not including all the information required, e.g. Purchase order number
• Sending it to the wrong employee of the right company where the contract stipulates a particular person
• Sending a notice with a ‘without prejudice’ heading in the notice or covering correspondence – it will not be effective

How to recover from a mistake

In most cases, a defect in the notice will be fatal. However, in some cases one may be able to argue waiver or estoppel to save the notice. This will require careful analysis and argument by a solicitor experienced in dispute resolution.

Conclusion

Serving notice under a contract or statute is a crucial process that requires careful attention to detail and adherence to contractual and legal requirements. For further assistance or advice on drafting a notice, responding to a notice, or where there is a dispute surrounding a notice, consider reaching out to legal experts. Helix Law can provide further guidance and support, ensuring any notices served are valid.