Email signatures and disclaimer notices are common in business and have,
for a long time, addressed important matters such as confidentiality and
the responsibility (or lack thereof) for virus scanning. In light of a
recent High Court decision, however, the spotlight is now on another role
that email notices have to play - avoiding the formation of a contract.
In the case of Neocleous v Rees, the High Court found that a
lawyer had concluded a contract for the sale of land on his client’s behalf
by sending an email that automatically included his name and title in the
form of an email signature. This, said the court, amounted to an electronic
signature. In this case, the unintentional upshot was the creation of a
contract that ultimately cost the lawyer’s client a considerable amount of
The key question in such situations (whether in an email or any other
document) is whether you took an active step to apply a mark to the
document in order to authenticate it. In Neocleous v Rees, the
lawyer had set up Microsoft Outlook to automatically add his name and title
to his outgoing emails. The court found that he had, therefore, taken that
important active step.
The question is not necessarily a simple one to answer and the case itself
is by no means conclusive. What difference, for example, would it have made
if the lawyer’s IT department had set up the signature? It does, however,
mean that care should be taken when communicating by email, particularly
where business matters are concerned.
Update Your Disclaimer!
In light of this surprising case, we have updated our Email Disclaimer
Notice template with new features designed to help avoid such accidental
contract formation. An optional “subject to contract” header is now
included, followed by a more substantial paragraph in the notice itself,
expressly stating that contracts are not concluded by email by your
business and that your employees and agents are not authorised to enter
into contracts with other parties by email. Disclaimer or no, however, we would still suggest that care should be taken with the wording of emails to avoid the appearance of any intention to create a contract via email.
We have also amended the paragraph on data protection to optionally refer
to the future “UK GDPR” in preparation for Brexit. The UK GDPR will
incorporate the current EU GDPR into UK law once the EU legislation ceases
to apply. Similar changes to GDPR references will be going live across our
portfolio as exit day approaches.
The contents of this Newsletter are for reference purposes only and do not constitute
legal advice. Independent legal advice should be sought in relation to any specific