The devil is in the detail: contractual provisions and limitations on service of notices and proceedings

The ENER-G Holdings plc v Hormell case shows that claimants should not risk the loss of potentially valuable claims by leaving it late to serve proceedings. Time limits in contracts are to be construed, in the words of the judge, "strictly, or at any rate without softheartedness" in the absence of express provision to the contrary. A contractual time limit is a definite line drawn by the parties for the sake of certainty; "once the line is crossed, a miss is as good as a mile".

But the case also illustrates the importance of precise and consistent drafting. If the parties wish to limit the ways in which notices can validly be served, they must say so. If different provisions of the contract permit notices to be given in different ways, this may help to lead the courts to conclude that a clause stating that notices "may be given" in one way or another is not to be read as saying that notices may only be given in one of the stated ways.

Notice clauses are commonly included within the catch-all expression "boilerplate" but, as this case shows, their exact drafting may be of crucial importance. A longer and more detailed clause stating exactly what is and is not required or permitted may be better than an abbreviated provision. These clauses should be carefully scrutinised in each case to ensure that they achieve their purpose. They must also be carefully read and followed where any notice has to be given.