On the tenth day of Christmas, the High Court gave to me…ten claims a-noticed

With Advent upon us, and Christmas on the horizon, RPC takes a musical look back at the most important English judgments of 2018. Liability for all failures of numbering, rhythm and rhyme is hereby excluded.

Christmas may come but once a year, but 2018 was book-ended by two cases in the Court of Appeal on claim notices in the context of share sale purchases.  These can be a trap for the unwary buyer as they form an additional hurdle to making a claim, often within a short contractually agreed limitation period (see verse 5 for 2018's cases on statutory limitation). 

In the bleak mid-winter not so long ago (that is, January), the Court of Appeal considered whether the requirement to give a notice "setting out reasonable details of the claim (including the grounds on which it is based and the Purchaser's good faith estimate of the amount of the claim ...)" had been satisfied in order to allow the purchaser to claim for breach of tax warranties.^[1]  The purchaser had given two notices about four months apart.  Both at first instance and in the Court of Appeal, the court held that the notice requirement had not been met because the specific warranties upon which the purchaser relied had not been identified and could not be inferred from the facts given in the notices.  The purchaser's understandable desire to keep its options open at an early stage backfired and its claims for around £4m melted away.  See here for more detail.   

Fast forward 12 months to St Nicholas' Day (6 December), and the Court of Appeal again looked at the requirement to give "a notice of the relevant matter or thing (specifying the details and circumstances giving rise to the Claim or Claims and an estimate in good faith of the total amount of such Claim or Claims)".^[2]  The seller argued that the notice given was inadequate because it did not provide details of the claims (which arose from actual and potential liabilities to customers from mis-selling by the business while owned by the seller) or an estimate of their value.  This time, the Court of Appeal held that the claim had been made under an indemnity which was not a "Claim".  As a result, while notice had to be given, the words in brackets did not apply.  Accordingly, the purchaser did not have to specify the details or estimate the claim value.

Lest you fear an ever-circling Court of Appeal, on both occasions it helpfully reminded us that "every notification clause turns on its own individual wording". 
Cold – not to say frosty – comfort for purchasers and their advisers.

The Twelve Judgments of Christmas (2018)

On the first day of Christmas, the High Court gave to me…a privilege in E-N-RC. 

On the second day of Christmas, the High Court gave to me…two LIBOR reps. 

On the third day of Christmas, the High Court gave to me…three corporate crimes.

On the fourth day of Christmas, the High Court gave to me…four contracts.

On the fifth day of Christmas, the High Court gave to me…five time bars! 

On the sixth day of Christmas, the High Court gave to me…six exclusion clauses.

On the seventh day of Christmas, the High Court gave to me…seven fraudsters fleeing.

On the eighth day of Christmas, the High Court gave to me… eight duties owing.

On the ninth day of Christmas, the High Court gave to me… nine losses mounting.

On the tenth day of Christmas, the High Court gave to me…ten claims a-noticed.

On the eleventh day of Christmas, the High Court gave to me…[to be continued]