The phrase ‘by close of business’ is one that anyone in business is extremely familiar with in relation to receipt of documents or monies. Given the frequency with which it is used in day to day business, it is surprising that there is no set definition of what the phrase actually means.

So when faced with a request for something by close of business, how can you interpret when the deadline actually is? From a business perspective, some context may provide guidance. Obviously when used in internal correspondence it can be taken to mean the normal hours of the relevant business. Indeed in general the safest approach would be to assume that it means 5pm, given that the majority of business’ stated business hours end at this time. However, in other circumstances, for example in sectors where late hours are the norm, it may reasonably be taken to mean before opening of business the next day. The situation of course becomes more complicated when dealing with businesses in different time zones; which close of business will apply?

This uncertainty can have more serious implications when there is a legal element to the request. In some circumstances where the phrase is used in a contract, it may be an explicitly defined term, or if not may be constructed by reference to business hours elsewhere in the document, for example in the notice clause, in which case the deadline is clear. But what about when it is not clear from the document? The law in England and Wales has not yet stepped in to provide an answer to this, so there is no definitive answer yet.

However, there has been case law in other jurisdictions which may provide guidance on the subject. For example, in a recent case[1] the Irish Supreme Court has considered the meaning of the phrase in relation to the appointment of a Receiver by a bank. Here, the bank had notified the Appellants that they would appoint Receivers unless they received payment due under a number of mortgages “by the close of business on 17 February 2012”. Payment was not made, and the court heard evidence that the bank appointed a Receiver at 4pm that same day, which was accepted by the Receiver at 4.15pm.

The Appellants sought to have the Receiver’s appointment declared invalid, since, they argued, he was appointed prior to ‘close of business’. The court agreed with the bank, stating that the phrase needed to be interpreted in ‘its ordinary meaning…in the particular context that it is used’. Here, the end of a banking business day was when the bank ceased to do banking business with its customers, therefore at 4pm. It was irrelevant that employees of the bank may have continued to work in the bank well after that time, the point was that no payment could be made by the Appellants after this time and therefore an Receiver could be validly appointed after this time on the same day.

Although this case was decided in Ireland, it is likely that an English court would take a similar view and therefore this case provides useful guidance as to how ‘close of business’ would be interpreted in a banking context. However, it highlights the fact that the phrase ‘close of business’ is surprisingly ambiguous given how frequently it is used in everyday business. It is unlikely that any party would wish to incur costs by testing its meaning in the courts, and therefore it is advisable to clarify the actual time that the relevant documents or goods are expected where possible.

This post was edited by Rachael Bentley. For more information, email blogs@gateleyplc.com.

[1] McCann v Haplin & anor [2016] IESC 11


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