Struthers & Anr v Davies (t/a Alastair Davies Building) & Anr

[2022] EWHC 333 (TCC)

A question also arose about the Notice of Intention to Terminate, which was sent by the Claimants. The First Defendant disputed its validity pointing out correctly that the contract required the contract administrator to issue the Notice of Intention. If the Notice of Intention was not valid, no further notice to terminate could be sent. The usual approach is that termination clauses must be construed strictly. The Claimants relied on Mr Justice Akenhead’s judgment in Obrascon Huarte Lain SA v. The Attorney General for Gibraltar (Issue 167) where, despite a notice being sent to the incorrect address (site office, not head office), the Judge upheld the validity of the notice.  

Here, the Judge thought that there were sound reasons for requiring the initial Notice to come from the contract administrator rather than the client. There was also no previous authority where the wrong person had sent a contractual notice triggering termination but the notice was still held to be valid. Further, the Judge was not satisfied that the First Defendant did receive the Notice of Intention a clear 14 days before the Termination Notice was sent and received. In the end, however,  this did not matter, as the First Defendant was found to be in repudiatory breach of contract before the Notice was sent. This meant that the Notice acted as an acceptance of that breach, if not a contractually valid notice in its own right. 

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