I did chuckle to myself on my morning Uber Boat commute when I heard this story on BBC Radio 4's Today programme, which was that the packaging for Mattel's new range of dolls inspired by the ‘Wicked’ movie contained the address of an adult website. This was a mistake of course, for which Mattel apologised.

However, this silly mistake by some vice-president of the packaging at Mattel got me wondering what would happen under a JCT building contract if the same human error had been made when populating the Contract Particulars for the purpose of the giving of notices. Yes, it is rather sad what construction solicitors think about on the morning commute when listening to Radio 4. Anyway, what is the answer? 

Well, let's just look at the 2024 edition of the JCT Design & Build Contract:

1. The ‘notice’ clause 1.7.4 (oft overlooked) has been updated to provide for a 1.7.4 notice to be given by email to “the recipient's email address stated in the Contract Particulars against clause 1.7.4.2” where, of course, clause 1.7.4.2 is stated in the Contract Particulars to apply.
2. Let's assume the Contract Particulars state that clause 1.7.4.2 “applies”, but the relevant email address has been inserted incorrectly and the sender of the notice is not aware of the error. What is the effect of serving an otherwise compliant contractual notice to the stated but incorrect email address?
3. On the face of it, service to the stated but incorrect email address will be valid service. Indeed, in one case, the reverse occurred, i.e. service to the wrong address was invalid even though the notice had been received - Capital Land Holdings Ltd v. Secretary of State for the Environment [1996] SCLR 75. This shows how important it is to insert the correct email address and, furthermore, to send the clause 1.7.4  notice to that stated email address.
4. Of course there are always exceptions to every legal rule, so where a sender knows the stated email address is incorrect service to that address might well be invalid - Mannai Investment Co Ltd v. Eagle Star Life Assurance Co Ltd [1997] AC 749 (HL). So, if the email address stated in your JCT DB 2024 contract was to an explicit adult content site it is probably safe to assume service of a notice to that email address would be invalid. However, no one wants to have to rely on ‘exceptions’ because these tend to be expensive to prove in front of a judge or an adjudicator and no one wants that.

When I were an articled clerk, email did not exist even in the City. Indeed, to misquote from the Monty Python Four Yorkshiremen sketch, we were lucky to have a fax machine and most contractual notices were served in person. These days, however, everything is done by email so the key to avoiding anything akin to a Mattel error is to check and re-check the stated email address and, one would suggest, to have a single email address for the receipt of all contractual notices. This single address can then be monitored and, if needed, updated from time to time.

Thankfully, clause 1.7.4,2 of the JCT DB 24 allows for the stated email address to updated so you just need to make sure you do update it when needed otherwise the notice will go to the right email address in the contract, but not the one that is being monitored. That may well give rise to different problems in terms of responding to a notice, but service won't have been defective.

I wonder what further provisions of the JCT 2024 contracts Radio 4's Today programme will prompt me to cogitate on.