What happened was that, after the sale, the sellers changed their solicitors and those solicitors corresponded with the buyers. The buyers sent notice of a claim of breach of warranty to the sellers and to the new solicitor (but not to the solicitor named in the contract). In response, the sellers argued that the specific requirements for deemed service had not been met. The court agreed; the new solicitors had no instructions or authority to accept service and the requirement that a copy be sent to the other (named) firm of solicitors had not been complied with. The language of the contract was clear and was mandatory rather than permissive. Accordingly, even though the sellers had suffered ‘absolutely no practical prejudice’ it was held that the buyers could not proceed with a claim against them.

This case is a simple reminder of the importance of strictly complying with contractual terms, which are likely to be regarded as preconditions. But those who wonder why the Mannai principle would not apply (ie a reasonable recipient would have known what was intended), should remember that Mannai does not apply to preconditions (eg if a copy notice had been served on the correct solicitors, but the names of the parties had been wrongly spelt so as to make the notice ineffective, then that might have been saved by Mannai. But, a precondition – such as a requirement to serve a document on a particular party – must be complied with. See note on Von Essen v Vaughan [2007] EWCA Civ 1349 in [2008] The In-House Lawyer February p45.  © Practical Lawyer