The Buyer served a notice to complete ‘within ten working days’ on the Sellers. The Sellers misunderstood this to mean they would have to leave on Boxing Day, whereas the legal date for completion was 2 January. Accordingly, they contacted the Birmingham Post to explain their plight and the end result was that a journalist phoned the Buyer’s solicitors, who then wrote to the Sellers on 22 December explaining that the time for completion would be extended until 9 January. That letter was sent by fax and DX, but the Sellers’ solicitor did not see it when its offices closed for Christmas on 23 December. On 2 January, the Sellers’ solicitors opened its offices specifically for this one completion, and eventually called the Buyer’s solicitors to discover she was not in. Eventually that office contacted the individual solicitor, who phoned the Sellers’ solicitor saying the Buyer had agreed to extend completion until 9 January. That was the first the Sellers knew about it and so the solicitor said he would take instructions – but he did not call back. The Buyer’s solicitors were then put in funds, but on 8 January the Sellers rescinded for a failure to complete on 2 January.

The Buyer argued that there was estoppel by conduct (ie the conduct of the solicitor in failing to call back). However, although professional conduct rules require a solicitor to act with frankness and good faith to another solicitor, there is no duty on a solicitor to call back. There was no intention to mislead. In practice, no competent solicitor having conduct of an important completion would have understood from the silence that the other side was agreeing to postpone completion.

The bottom line was that there was confusion. The Buyer had made time of the essence (by serving the notice to complete, with completion to be by 2 January). The Buyer could not unilaterally extend that date and was thus bound by its own notice to complete. As will seem obvious to most readers (but was not obvious to that solicitor at the time), silence from the other side cannot be taken as acquiescence.

Never forget that a party that serves a notice to complete is then bound by that notice to complete. As the Conveyancing Handbook puts it:

‘Making time of the essence imposes a condition which binds both parties. If, therefore, between the date of service and the new date for completion as specified by the notice, unforeseen events occur which result in the previously aggrieved party being unable to complete on the new date, then the previously defaulting party could turn round and terminate the contract, leaving the aggrieved party in breach of contract himself. For this reason a notice to complete should never be served as an idle threat. The server must be sure that he will be able to comply with the new completion date himself before serving the notice.’ (12th edition; p722).

For the full facts, see Northstar v Maitland Brooks [2006] EWCA Civ 756.  © Practical Lawyer