Agreements and legal documents will often say that something has to be done by ‘close of business’. But, in the days of internet shopping and 24/7 supermarkets what does that actually mean? And will it always mean the same thing?
Corporate solicitor Priya Thakker and corporate partner Sophie Brookes explore the details:
The Irish and English courts took very different views this year when interpreting the phrase. So where should you be working if you want to swap business for Guinness at 4pm rather than 7pm?
The Irish view
Earlier this year, the Irish Supreme Court considered a case involving a demand letter issued to a company by Irish Bank Resolution Corporation Limited stating that, unless payment was received by ‘close of business’ on 17 February 2012, the bank would enforce its security. When payment was not received by 4pm on the deadline day, the bank executed a deed to appoint a receiver. That deed was dated 17 February 2012 at 4pm. The company argued that the appointment of the receiver was invalid as it had taken place before close of business and therefore before the time for payment had passed.
But the Irish Supreme Court disagreed and held that the banking business day ends when the relevant bank ceases to do banking business with its customers. For the Irish Bank Resolution Corporation Limited, this was 4pm and therefore ‘close of business’ in the bank’s demand letter meant 4pm.
The view from London
A recent case in the English High Court suggests the working day may be a little longer in London.
In this case, Lehman Brothers and Exxonmobil disagreed about when a default valuation notice had been served under a sale and repurchase agreement. A provision in the agreement stated that any notice which was received “after close of business on the date of receipt or on a day which is not a day on which commercial banks are open for business“ would be treated as being given at the opening of business on the next working day.
The default valuation notice was received by fax at 6.02pm but was that before or after ‘close of business?’ The court held that the notice was received before close of business, agreeing with Exxonmobil’s expert who said that, as a rough approximation, in the modern world commercial banks close at about 7pm.
Who was right?
Not only does this show how different countries view the business day for banks, it shows that leaving the precise meaning of ‘close of business’ open to interpretation is risky and can result in a costly legal battle. It is better to state a specific time by which a particular event must happen, rather than leaving this to the whim of a judge interpreting an imprecise phrase.
The decisions also suggest that Irish bank workers are able to swap business for Guinness three hours earlier than their English counterparts, so Christmas may be rather merrier in Dublin than London!
For more information, please contact:
Corporate partner Sophie Brookes
T: 0161 836 7823