Introduction: The form, content, timing or even delivery method of a notice issued under a contract can determine whether, for instance, a party properly declared a default, exercised an option, or claimed a force majeure event. Complicated, unclear or impractical notice provisions can make it difficult to ascertain whether a notice has been properly issued. You do not want to end up in court arguing about notice provisions.

Mandatory or permissive: If you intend a notice provision to specify exclusive methods of service, the mandatory “shall” should be used, not the permissive “may.” If your clause is permissive, a notice may sometimes be validly served, even though it is served by a different method to those specified in the contract (see, e.g., UKI (Kingsway) Ltd v Westminster City Council [2018] UKSC 67). 

Not following mandatory notice requirements: Contractual notices will be construed objectively by the English courts. Mandatory notice requirements are applied strictly. If the requirements are not followed, the notice is likely be invalid. In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19, the House of Lords stated that failure to comply with express provisions in a contract prescribing the form of notice would not be excused “... if the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear [the contents of the notice] might have been.” The same applies to complying with timing requirements, parties issuing (and signing) the notice and the form of the notice. 

Forms of notice delivery: Notice provisions will often permit delivery of notices to a party in more than one method. Most commonly, notices may be delivered by post, registered post or courier to a party at a specified address. Other forms of delivery may include: 

• Personal delivery: Personal delivery to a party at a specified address. However, watch out for clauses where personal delivery is required. In Bottin (International) Investments Ltd. v Venson Group Plc & Ors [2004] EWCA Civ 1368, the Court of Appeal confirmed that where personal delivery is required, merely leaving a document at the address in question was not sufficient; giving it to the receptionist or another responsible person was required. Take care with personal delivery on SPVs as you may never find anyone on whom to serve notice. 
• Facsimile: Many boilerplate notice provisions still refer to notice by fax. However, this technology is not as widespread as it once was. Fax numbers may no longer be closely monitored or maintained, and a recipient may miss the notice, even though it was validly delivered. If you do not actively use a fax in your business, you should consider removing references to faxes from notice provisions. It is also worth considering whether existing contracts should be amended to remove such references. 
• Email: Is probably the dominant mode of communication in the corporate environment and is regularly included as an option for the delivery of notices. The risks of using email for notices include the email arriving late or corrupted, the recipient’s email address being out of date (e.g., where a specific person’s email address was nominated to receive notices but that person has since left the company and the notice provision has not been updated, the relevant email address may no longer be monitored) not being seen by the intended recipient (e.g., due to a technical failure or being filtered out as ‘spam’ by the recipient’s server or email software) and third-party impersonation. It may be prudent for companies to set up special email addresses to receive notifications under a contract, to monitor that email address and to apply filtering and forwarding rules to ensure notices are received and read by the correct people in their organisations.  
   

Updating notice details: Notice provisions should specify where and to whom notices should be sent and provide a mechanism for updating the address or recipient in the future. However, parties to contracts often forget to update recipients when individuals leave the company. For this reason, it is often preferable to specify a position (such as company secretary or managing director) rather than a name and a specially created email address rather than an individual’s email address (see above). 

Timing for delivery: Notice provisions commonly deem the time that a notice is received if sent by a particular method. However, deemed service provisions can be a double-edged sword. For example, sometimes the deeming provision is tied to the normal business hours of the recipient. In addition, where there is actual evidence of non-delivery, such as a return to sender of a recorded delivery letter, the deeming provision may be ineffective (see Re Thundercrest Ltd [1995] 1 BCLC 117). 

Statutory notice provisions: Certain statues, such as the Companies Act 2006, the Law of Property Act 1925 and the Landlord and Tenant Act 1927, may offer contracting parties some help in the absence of a notices clause or add to the service provisions of a (permissive) clause. 

Service of court proceedings: Generally, notice provisions do not apply to the service of proceedings or other documents in a legal action and different rules will apply (such as the Civil Procedure Rules). Separate provisions for process agents (and the appointment of such agents) usually address service of process in relation to court proceedings.