High Court considers the meaning of “close of business”
Lehman Brothers International (Europe) (in administration) (“LBIE”) v Exxonmobil Financial Services BV (“Exxonmobil”)  EWHC 2699 (Comm), 28 October 2016
One of the issues to be determined in this case was the meaning of “close of business” in relation to a “default valuation notice” sent by Exxonmobil to LBIE (“Notice”).
The standard form sale and repurchase agreement between the parties stated the following in relation to the deemed receipt of default valuation notices:
"any notice or communication which is received…after close of business… or on a day which is not a day on which commercial banks are open for business…shall be treated as given at the opening of business on the next following day..."
LBIE received the Notice by fax at 6.02pm on the relevant day. LBIE contended that close of business in London is 5pm. Exxonmobil contended that it is 7pm.
Mr Justice Blair made the point that the term "close of business" on a particular day can be a useful term which provides a degree of flexibility to discourage arguments based on the precise time of receipt, which may make little commercial sense.
Where the intent of a contract is to impose a definite cut-off time, it can do so expressly. As the contract did not do this, the contract should not be interpreted as though it had. On these facts, Mr Justice Blair agreed with Exxonmobil’s expert, who explained that a necessarily rough approximation of the time of closure of a commercial bank in the modern day was about 7pm. Accordingly, he was satisfied that the notice was received by LBIE before close of business, and should therefore not be treated as being given at the opening of business on the following day.
This case is a useful reminder that if a party wishes to remove the inherent flexibility of such a provision, the contractual drafting should be sufficiently precise, with reference to the specific time.
2020: Influencer, 2021: Creative Director – what could go wrong?
Coded messages for landlords and tenants
“What does the code of practice mean for landlords and tenants? Read more here”
Jason Saiban writes for Food Manufacture on the food industry's climate change challenge
The key challenge will be how the environmental targets are actually met.
Grab the tail by the horns - Why is tail spend so critical in today’s outsourced portfolio?
It’s usually invisible, but in all likelihood, you’ve got tail spend.
Mark Hill writes for In-House Community Magazine on solutions templating, a new priority for in-house legal teams
Removing the burden from legal teams, contract managers and administrators.
Olivia Crane quoted by SoGlos on the increasing issue of cyber fraud being faced by businesses in Gloucestershire
Cyber fraud has cost Gloucestershire businesses around £369,800 in the last 13 months.
Tattoos, athletes and image rights
Campaigns featuring athletes often include visible tattoos and a number of recent legal cases demonstrate the issues that may arise.
Food Sector steps up on climate goals
Blue Sky Linking
Daniel looks at Sky's recent success in obtaining interim protection from infringement of their broadcast rights
Don’t Gamble on Bingo Ads, Warns ASA
The ASA has issued a reminder to advertisers that bingo adverts will be treated as gambling ads for the purpose of standards regulation.
Recording Phone Calls: Don’t take Consent for Granted
What if an interviewee who is being called and interviewed “live” does not actually know he/she is on live television?
Continuing Progress in the Sphere of Inclusive and Non-Discriminatory Advertising
The latest developments from the ASA, CAP and BCAP relating to the advertising regulators’ attempts to tackle discrimination in advertising.
eCommerce and the Post-Brexit State of Play
Key UK and EU legislation governing how online platforms deal with consumers and their business users.
UK and EU launch two-pronged attack into whether Facebook is abusing a dominant market position
The CMA and the European Commission have said that they intend to work together closely as their respective investigations develop.
Jason Saiban and Caroline Swain among contributors to the ICLG Guide on Digital Business Laws and Regulations in the UK
An overview of the laws and regulations for digital businesses operating in the UK.
Draft Online Safety Bill: Regulating the online world
On 12 May 2021, the UK government published the draft Online Safety Bill...
Counterfeit goods – online platforms and luxury brands take a new collaborative approach
Online retail has been increasing for the best part of a decade due to a shift in consumer behaviour.
Charles Russell Speechlys proud to sponsor the ‘Outstanding Achievement’ award at the final Sunday Times Virgin Fast Track 100 awards
The awards celebrated the successes of Britain’s 100 private companies with the fastest-growing sales.
New foreign ownership rules take effect on 1 June 2021
Trade Marks - what is bad faith?
In any legal dispute, the term ‘bad faith’ is often banded about.