In House Lawyers Update: Using email for contractual notices

Providing for notice by email


Interception by a third party.

The email arriving late or not at all, for example through server failure, data overload, interception by spam filters, or an incorrectly typed address. Failure notices are not always sent, or may be delayed.

The email arriving but being unintelligible, or containing changed formatting, which may have altered the meaning.

Suspicions that it may be comparatively easy to forge or falsify an email, compared to hard copy documents.

Fears that, in some jurisdictions, emails may be less trusted than more formal documents.

Practice points

Be clear about the form of electronic communication that can be used, eg you might wish to exclude notification via Dropbox. Note that in the 2014 case of Greenclose Ltd v National Westminster Bank plc, the court held that delivery via an "electronic messaging system" did not include email.

Is email an appropriate means of service for all types of notice to be given under the agreement or should it be restricted to non essential notice, with more important notices, for example termination, still being required to be in writing.

Add a requirement for the document to be sent by first class post the same day (or by other specified means) so you can be sure it gets attention.

Think carefully about which email address to use. If a specific person is to be notified, will that person still be with the organisation when the notice is sent? Consider setting up "legalnotices@" type inboxes with a set distribution list (eg General Counsel, other relevant directors).

If necessary, would you be able to prove that the email had been sent?

When is legal delivery to occur for the purposes of the contract? Is proof of delivery required?

Because of the difficulties in proving delivery, include a deemed delivery provision, although you might want to resist this if you are the likely recipient.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.