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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Mehta v J Pereira Fernandes SA [2006] EWHC 813 (Ch) (07 April 2006) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2006/813.html Cite as: [2006] WLR 1543, [2006] EWHC 813 (Ch), [2006] 1 WLR 1543 |
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CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Crown Square Manchester |
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B e f o r e :
(Sitting as a Judge of the High Court)
____________________
NILESH MEHTA |
Appellant/ Defendant |
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- and - |
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J PEREIRA FERNANDES S.A |
Respondent/ Claimant |
____________________
Mr P. Aslett (instructed by Ian Simpson & Co for the Respondent)
____________________
Crown Copyright ©
His Honour Judge Pelling QC:
Introduction
" I would be grateful if you could kindly consider the following. If the hearing of the Petition can be adjourned for a period of 7 days subject to the following:
(a) A Personal Guarantee to be given in the amount of £25,000 in favour of your client together with a list of my personal assets provided to you by my solicitor
(b) A repayment schedule to be redrawn over a period of six months with a payment of £5000.00 drawn from my personal funds to be made before the adjourned hearing.
I am also prepared to give a company undertaking not to sell market or dispose of any company assets without prior consent from your client pending the signing of the Personal Guarantee "
The e mail was not signed by Mr Mehta but is described in the header as having come from Nelmehta@aol.com. This e mail address appears on other e mails sent to JPF's solicitors by Mr Mehta, which have been signed by him.
"Although I sent the Defendant an agreement to cover the instalment payments and Personal Guarantee, I heard nothing further from him, he never returned the documents and he did not pay the £5,000 which had been promised from his personal funds."
The Issue Concerning The Amount Owed by Bedcare
The Issues In The Appeal
9.2.1. The guarantor , or
9.2.2. Someone authorised by the guarantor to sign the agreement or memorandum on his behalf.
The effect of a non compliance with Section 4 is that the contract is unenforceable.
10.1. whether the e mail constituted a sufficient note or memorandum of the alleged agreement for the purposes of Section 4; and
10.2. Assuming the e mail was a sufficient note or memorandum, whether it was sufficiently signed by or on behalf of Mr Mehta, it being contended on behalf of JPF that the presence of the e mail address on the copy of the e mail received by JPF's solicitors was a sufficient signature for these purposes.
Was The E Mail A Sufficient Note Or Memorandum?
The Signature Issue
"I am of opinion that the principle to be derived from the decisions is this. In the first place, there must be a memorandum of a contract, not merely a memorandum of a proposal; and secondly, there must be in the memorandum, somewhere or other, the name of the party to be charged, signed by him or by his authorized agent. Whether the name occurs in the body of the memorandum, or at the beginning, or at the end, if it is intended for a signature there is a memorandum of the agreement within the meaning of the statute." [Emphasis supplied]
As was emphasised by Cave J, the appearance of the name of the party to be bound must be "intended for a signature". It is noteworthy that that this case was cited to the House of Lords in Elpis Maritime but was not disapproved by Lord Brandon. I do not think it can be said (and, in any event, there is no evidence) that either Mr Mehta's employee or the ISP either sending or receiving the e mail intended Mr Mehta's e mail address to be a signature in the sense identified above.
"The cases on this point establish that the mere circumstances of the name of a party being written by himself in the body of a memorandum of agreement will not of itself constitute a signature. It must be inserted in the writing in such a manner as to have the effect of "authenticating the instrument" or "so as to govern the whole instrument" The name of the party, and its application to the whole of the instrument, can alone satisfy the requisites of a signature.
Lord Westbury said (Page 143) that what is alleged to constitute the signature must
" be so placed as to show that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument. It must govern every part of the instrument. It must shew that every part of the instrument emanates from the individual so signing, and that the signature was intended to have that effect. It follows that if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum. [Emphasis supplied]
Conclusion