IN THE COURT OF APPEAL (CIVIL DIVISION) BETWEEN: SLADE ANTIQUES LTD Appellant - and NORMAN FLETCHER Respondent SKELETON

ARGUMENT ON BEHALF OF THE APPELLANT Introduction 1. This is an appeal by the Appellant against a finding by His Honour Judge McKay J that the Respondent made a valid withdrawal of his offer and that the acceptance of the offer by the Appellant was made outside working hours. Factual Background 2. At around noon on March 01, 2011, the Respondent (Mr Fletcher) offered the Appellant (Mr Godper, Slade Antiques) 9,000 for an urn. Business cards were exchanged to provide communication while Mr Godper consulted the co-owner of the shop. As Mr Fletcher left the shop, Mr Godper told him not to call his the landline. At 4pm, Mr Fletcher revoked his offer via a message on Mr Godpers landline, but Mr Godper did not receive it. Mr Godper emailed Mr Fletcher just before 5.30pm, accepting Mr Fletchers offer of 9,000. Mr Fletcher responded instantly on by email to say he had revoked his offer. 3. At first instance, McKay J held that Mr Fletchers telephone message was a valid withdrawal and that the offer had not been accepted during normal business hours. Submissions First Ground of Appeal: Invalid Withdrawal of Offer 4. It is reasonable to expect Mr Fletcher to convey his revocation using the mobile number or email address supplied by Mr Godper, rather than rely on a landline he was told not to use. In Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelgesellschaft GmbH [1982] 2 WLR 264, Lord Wilberforce said: No universal rule can cover

[instantaneous communications]; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment where the risks should lie. Here, the risk was in Mr Fletchers revocation not being received thus binding him to a 9,000 purchase, so sound business practice would have been to follow his voicemail message at least with an email. 5. Lord Denning explains in Entores LD. v Miles Far East Corporation [1955] 3 WLR 48, a contract is only complete (or in this case, revoked) in the context of instantaneous communications once the message is received. Mr Fletchers message was not received. Lord Denning also outlines the duty of an offeror to make every effort to understand all messages. In the context of a quiet antiques shop, weWe submit Mr Fletcher must have heard at least part of Mr Godpers request not to telephone the landline, which means he had a duty to confirm what has been said, rather than ignore it and rely on the consequences. Second Ground of Appeal: Normal Business Hours 6. In the modern age of instant communication and 24-hour services, 5.30pm reasonably constitutes business hours. In Tenax Steamship Co v Owners of the Motor Vessel Brimnes (The Brimnes) [1975] QB 929, a telex sent between 5.30pm and 6pm, but not read until the next day, was decided to have been communicated on arrival. 7. As above, normal business hours should be considered in the context of the risk and business practices involved. In TThomas and Another v BPE Solicitors [2010] EWHC 306 (CH), an held, an email sent at 6pm is was deemed read received within working hours even though the recipient had gone home, because the recipient could should reasonably expect an email relating to the imminent completion of a deal. Mr Fletcher replied to Mr Godpers email of around 5.30pminstantly, thus agreeing to its validity. Conclusion 7. For the reasons set out above, it is submitted that the court should allow the appeal and find that there was an invalid withdrawal of offer, and that an email sent at 5.30pm was sent within normal working hours, which therefore formed a contract. ADIL KARIM

REBECCA WILLCOX Counsel for the Appellant 21 November 2011