Greenclose v National Westminster Bank plc: Difference between revisions

Schoolboy error no.1 by NatWest was to agree a notice deadline which expired during the Christmas holiday when Greenclose was highly likely to be out of the office. But that’s as may be.

Error no. 2, which was less of a schoolboy one, in this reviewer’s opinion, was to assume that an [[email]] - being, after all, an '''electronic''' mail '''message''' sent over a computer '''system''' (so sayeth [https://en.wikipedia.org/wiki/Email Wikipedia]) fell within the meaning of an “[[electronic messaging system]]”. Not so, thought Andrews J. because:

{{box|“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 cursory 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 nascent email being treated as a kind of [[electronic messaging system]]''.

The intellectual endeavour here is interesting: Firstly, to deduce the meaning of the words in that agreement Andrews J looks at ''the intention of the person who crafted the {{1992ma}}'', and not the intentions of the parties who actually negotiated the agreement. The agreement was signed in 2006, by which stage email was widely known and understood. It seems fanciful to suggest parties would intend to include all [[electronic messaging system]]s ''except'' [[email]], especially since email is the only system vaguely answering the description of an “[[electronic messaging system]]” than a caravan park owner in Wales would be likely to have. There is a long disquisition on what {{ISDA}} intended which, this reviewer submits is utterly irrelevant because ''ISDA was not a party to the contract''.

Andrews J 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]] is a messaging system. [[SMTP]] over the [[Internet]] is, apparently, not. You have to squint really hard and hold your head in a funny way to follow that logic. Again: most Caravan park owners in Wales don't have SWIFT.

What’s oddest about this is that the court needed to make ''none'' of these assertions to find NatWest’s attempted service wasn’t valid, because ''Greenclose hadn’t specified an email address in the ISDA {{isdaprov|Schedule}}''. Simply put, ''there was no agreed email address to which NatWest could send Greenclose a message'', however you construe Section {{isdaprov|12}}. Therefore communication by email (within in the contemplation of Section {{isdaprov|12}}) wasn’t possible. Case closed.

(Andrews J also was exercised mightily about whether a notification, even if undisputedly effective, not consistent with Section {{isdaprov|12}} would count for the purposes of exercising options under the {{isdama}}. Andrews J chose the path less travelled, in finding that “any notice or other communication ''may'' be given in any manner described below” meant it may ''only'' be given in that manner. Which raises the question: what if the court had found on the facts that a non-compliant notice had, nonetheless made its way to the relevant person and been appropriately adverted to: would the court still follow substance over form and disallow the claim?

And what would the court have found if [[Greenclose]] ''had'' specified an email address? That he was wrong to do so, because that wasn’t an identifier on a valid “[[electronic messaging system]]”?