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Greenclose v National Westminster Bank plc: Difference between revisions
Greenclose v National Westminster Bank plc (view source)
Revision as of 10:16, 15 August 2016
, 15 August 2016→Email is not an electronic messaging system?
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===[[Email]] is not an [[electronic messaging system]]?=== | ===[[Email]] is not an [[electronic messaging system]]?=== | ||
This was the hinge point of the case: does [[email] count as an [[electronic messaging system]] under {{1992ma}}? No, thought Andrews J. because: | This was the hinge point of the case: does [[email]] count as an [[electronic messaging system]] under {{1992ma}}? No, 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.”}} | {{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 | 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]]''. | ||
Andrews J compared with the equivalent provision in the {{2002ma}}. This ''does'' include [[email]], as a separate item from “[[electronic messaging system]]”: | Andrews J compared with the equivalent provision in the {{2002ma}}. This ''does'' include [[email]], as a separate item from “[[electronic messaging system]]”: | ||
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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. It may have been the 1992 edition of the ISDA form, but it 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 hotel owner in Wales would be likely to have. There is a long disquisition on what {{ISDA}} intended which, this reviewer submits is quite beside the point because ''ISDA was not a party to the contract''. | 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. It may have been the 1992 edition of the ISDA form, but it 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 hotel owner in Wales would be likely to have. There is a long disquisition on what {{ISDA}} intended which, this reviewer submits is quite beside the point 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]], though the court, is a messaging system. [[SMTP]] over the [[Internet]] it thought, 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]]. The drafters of the {{ | 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]], though the court, is a messaging system. [[SMTP]] over the [[Internet]] it thought, 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]]. The drafters of the {{1992ma}} may not have had modern email in mind, but they certainly weren't contemplating Welsh hoteliers. | ||
What’s oddest about this is that the court needed to make ''none'' of these assertions to find NatWest’s attempted service invalid, 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. | What’s oddest about this is that the court needed to make ''none'' of these assertions to find NatWest’s attempted service invalid, 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. | ||