Greenclose v National Westminster Bank plc: Difference between revisions
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
Line 1: | Line 1: | ||
{{fullanat2|isda|electronic messages|2002|Electronic messages|1992}} | {{fullanat2|isda|electronic messages|2002|Electronic messages|1992}} | ||
A fine example of that old legal maxim ''[[anus matronae parvae malas leges faciunt]]'': Little old ladies (and, in this case, aggrieved Welsh hotel owners) make bad law, {{casenote|Greenclose|National Westminster Bank plc}} ([https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2014/1156.html&query=(title:(+greenclose+)) judgment]) opines on the apparently harmless {{isdaprov|Notices}} Section ( | A fine example of that old legal maxim ''[[anus matronae parvae malas leges faciunt]]'': Little old ladies (and, in this case, aggrieved Welsh hotel owners) make bad law, {{casenote|Greenclose|National Westminster Bank plc}} ([https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2014/1156.html&query=(title:(+greenclose+)) judgment]) opines on the apparently harmless {{isdaprov|Notices}} Section ({{isdaprov|12}}) of the {{1992ma}}. It considers the meaning of “[[electronic messaging system]]” and, saucily, finds that it does not include [[email]]. | ||
Let me say that again, in case you missed it: in the eyes of the common law | Let me say that again, in case you missed it: in the eyes of the current [[common law]] '''[[email]] does not count as an “[[electronic messaging system]]”'''. | ||
===Facts=== | ===Facts=== | ||
Line 30: | Line 30: | ||
This was the hinge point of the case: does [[email]] count as an [[electronic messaging system]] under {{1992ma}}? No, thought the court, because: | This was the hinge point of the case: does [[email]] count as an [[electronic messaging system]] under {{1992ma}}? No, thought the court, because: | ||
:''“In 1992, email was not in common use and thus the reference to “[[electronic messaging system]]” is unlikely to have been intended to include it.”'' | |||
The court does not seem to have heard any evidence on this point. A | The court does not seem to have heard any evidence on this point. A glance at Wikipedia would suggest this is wildly wrong: the SMTP protocol, over which email is still transferred today, was published in 1982. It is true that the ''expression'' “email” didn’t enter the lexicon until 1993 – ''but that is consistent with it being treated back then as just a kind of [[electronic messaging system]]''. | ||
The court compared the {{1992ma}} with the {{2002ma}}, which ''does'' include [[email]], ''as a separate item from “[[electronic messaging system]]”'': | The court compared the {{1992ma}} with the {{2002ma}}, which ''does'' include [[email]], ''as a separate item from “[[electronic messaging system]]”'': | ||
{{ | Side note: This is the only plausible grounds for the decision: Clearly, by 2002, someone at ISDA had decided that email and electornic messaging systems were different things. A curious view — but then, isn’t so much of our beloved {{isdama}} delightfully curious? | ||
The intellectual endeavour here is interesting: Firstly, to | The intellectual endeavour here is interesting: Firstly, to interpret the agreement, the court looked at ''the intentions of the committee who drafted the form of {{1992ma}}, and not those of the parties who negotiated this actual agreement''. But ''ISDA was not a party to the contract''. Sure, it may have been on [[ISDA]]’s 1992 form, but it was signed in 2006, by which time “[[email]]” ''was'' common. The expectations of some Luddite banking specialists when they crafted a standard form nearly two decades earlier really ought to have been besides the point. | ||
In any case, why — in 2006 — would parties deliberately include all [[electronic messaging system]]s ''except'' [[email]]? All the more so, since email is the only means of communication even vaguely corresponding to “an [[electronic messaging system]]” than a Welsh hotelier would be likely to have? | |||
The court also needed also to draw a peculiar, narrow meaning of the word “system” to rule that while [[email]] may be a means of communicating electronic messages, it is not a “system”. [[SWIFT]], thought the court, is a messaging system. [[SMTP]] over the [[Internet]] | The court also needed also to draw a peculiar, narrow meaning of the word “system” to rule that while [[email]] may be a means of communicating electronic messages, it is not a “system”. [[SWIFT]], thought the court, is a messaging system. [[SMTP]] over the [[Internet]] is not. You have to squint really hard and hold your head in a funny way to follow that logic. Hotel owners in Wales ''can’t'' communicate by [[SWIFT]]. Whether or not they had modern email in mind, the drafters of the {{1992ma}} certainly weren’t contemplating Welsh hoteliers. | ||
What’s oddest about this is that the court needed to make ''none'' of these assertions to find | What’s oddest about this is that the court needed to make ''none'' of these assertions to find service invalid, because ''Greenclose hadn’t supplied an email address in the {{isdaprov|Schedule}} in any case''. However you construe Section {{isdaprov|12}}, ''there was no agreed email address to which NatWest could send Greenclose a message''. Therefore, valid communication by email “under Section {{isdaprov|12}}” ''was not possible''. Case closed. | ||
(The court was also exercised mightily about whether a non-conforming notification, even if | (The court was also exercised mightily about whether a non-conforming notification, even if effective, would count for the purposes of exercising options under the {{isdama}}. Here again it chose the path less traveled, construing the statement “any notice or other communication ''may'' be given in any manner described below” as meaning it may ''only'' be given in that manner. | ||
Which raises | Which raises another question: what if the court had found that a notice, though non-compliant, ''had'', in fact, been delivered to Mr. Greenclose? Would it still follow [[Substance and form|substance over form]] and disallow the claim? | ||
And what | And what if Mr. [[Greenclose]] ''had'' specified an email address? That he was wrong to do so, because that wasn’t an identifier of a valid “[[electronic messaging system]]”? | ||
Questions that won’t be answered for now, as NatWest did not appeal the decision. The world is a less certain place. | |||
Questions that won’t be answered for now, as NatWest | |||
{{seealso}} | {{seealso}} | ||
*[https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2014/1156.html&query=(title:(+greenclose+)) [[Andrews J]]’s Judgment] | *[https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2014/1156.html&query=(title:(+greenclose+)) [[Andrews J]]’s Judgment] | ||
*[[The Victory of Form over Substance]] |