SERVICE BY EMAIL IS GOOD SERVICE: FAMILY COURT DECISION
Issues of electronic service are still relatively novel. Some interesting issues were addressed by Mostyn J in Maughan -v- Wilmot  EWHC 29 (Fam). This is a family case where important observations are made in relation to service by email which are of wider relevance.
- A court order giving permission to serve a person, living abroad, was not an invalid order.
- The respondent to that order was bound by court proceedings when he had consented to service by email, not given an address for service, and appeared at court proceedings.
- There are general points of importance here in relation to service by electronic means.
- However remember the important point here is that the court gave permission to serve by email.
- The court had earlier ordered that the husband in a case could be served by email.
- The husband gave no address for service and, it was held, accepted that the only way in which service could take place was by email.
- The husband was English and worked as a pilot for Turkish Airlines. He had no home in Istanbul and was “highly transient and mobile”.
- An order made in 2013 provided that the husband could be served validly if served by email.
- The husband attended a hearing but left, feeling unwell, before judgment was entered.
- The husband attempted to appeal, represented by counsel. The grounds of appeal did not include any complaint about the validity of the order being sent by email.
- At a later hearing the husband asserted that the orders made were all null and void because there was no power to serve a person out of the jurisdiction by email when he was present in Turkey, a country which is a party to the Hague convention.
- The husband argued that the payments the husband had made were nil and void and the wife should repay the sums.
THE POSITION OF THE ORDER
An order of any court is binding until it is set aside or varied: R (on the application of Lunn) v Governor of Moorland Prison  EWCA Civ 700,  1 WLR 2870, at ; Serious Organised Crime Agency v O’Docherty (also known as Mark Eric Gibbons) and another  EWCA Civ 518 at . An order is binding even if there were doubt as to the court’s jurisdiction to make it: Chuck v Cremer (1846) Cooper temp. Cott. 205; Hadkinson v Hadkinson  P 285 at 288; Isaacs v Robertson  AC 97 at 101-103; M v Home Office  UKHL 5,  1 AC 377 at 423; KW & Ors v Rochdale Metropolitan Borough Council  EWCA Civ 1054 at .
THE POWER TO SET ASIDE OR VARY AN ORDER
Under FPR 4.1(6) and section 31F(6) of the Matrimonial and Family Proceedings Act 1984, as amended, the court has power to vary, revoke, suspend or rescind an order made by it. This is a discretionary power. Even if there is shown to have been doubt as to the jurisdiction of the court to make an order it does not necessarily follow that the discretion will always be exercised to set the order aside. The power will be exercised in accordance with elementary principles of justice. If a party has promptly challenged an order on a certain ground and has always protested its validity then the power to set aside would very likely be exercised in his favour. But if a party has acquiesced in the validity of an order, or has delayed in challenging it, or has submitted to and accepted the jurisdiction of the court, or has otherwise behaved unconscionably, then it is improbable that the discretion would be exercised in his favour.
This is just such a case. Over two years elapsed before the husband took this point, although he took many other meritless points about the validity of the order (for example, that the order did not precisely reflect the terms of the judgment). All of these were dismissed by Lloyd LJ in the Court of Appeal. In that period there had been considerable litigation between the parties, during the course of which the husband himself has, as I have stated, deluged both the wife and the court with emails, and had made his own applications giving an address in England and email addresses for service. At the hearing on 21 December 2015 nothing was placed before me which showed that the husband had raised any protest against the email service provision of the order. On that occasion I directed that further written submissions on certain discrete points should be filed by 6 January 2016 as I intended to write this judgment on 7 January. Mr Swift compiled; Mr Bowen QC did not, claiming that the matter had been too complicated. I therefore directed on Saturday 9 January that in circumstances where this judgment had been largely written I would accept further submissions from Mr Bowen not exceeding 4 pages. That was sent to counsel at 16:47. However on that day at 15:10 Mr Bowen had filed with my clerk a 25 page further submission. Following receipt of my direction he filed on Sunday 10 November at 18:15 a condensed version of 4 pages. I have read the latter but not the former. The condensed submission asserts that the husband has indeed protested about email service and states that a bundle of letters and emails will be filed on Monday 11 January. This is unacceptable. I have not read any further material. Even if the husband has protested about email service of orders made in his absence, such protests ring very hollow indeed given his extensive use of that medium in this litigation. My previous judgment shows how he was fully aware of the applications that were then before the court.
In my judgment the husband by his conduct has forfeited the right to advance any argument concerning the validity of the orders which have been in place for such a long time. I decline to exercise my discretion in his favour.
THE JUDGE’S OBSERVATIONS IN RELATION TO SERVICE BY EMAIL
However, I will nonetheless express my opinion on the argument advanced by Mr Bowen QC as this may well be relevant in other cases. Moreover, it may be that another court finds my primary decision in relation to my discretion to be wrong and so it is necessary for me to give my reasons as to why I reject the basic argument of Mr Bowen QC.
The law reports contain many cases about service and an aura of mystery and complexity envelopes the subject. However, recently in Abela & Ors v Baadarani  UKSC 44 (26 June 2013),  4 All ER 119,  1 WLR 2043, the Supreme Court has addressed the subject with arresting simplicity and has exploded many of the myths surrounding it. At  Lord Clarke reminded us all of a simple truth namely that the whole (and sole) purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant’s case. Therefore when granting permission to serve originating process out of the jurisdiction in a civil claim (which permission is not required in a family claim – see FPR 6.41) the court has power under CPR 6.37(5)(b)(i) to direct that the service may be effected otherwise than in accordance with the law of the foreign country. Mr Bowen QC accepted that such a direction would extend to allowing service by email. However at  Lord Clarke made it clear that that case was not one where the Hague Service Convention applied or in which there is any bilateral service convention or treaty between the United Kingdom and Lebanon; he left that situation open. Mr Bowen QC argues before me that that is the very situation here.
Mr Bowen QC’s argument is as follows:
i) While there is a power to order service by email on a person in the jurisdiction under FPR 6.19 and PD6A paras 4.1 to 4.6 there is no comparable power in Chapter IV of FPR Part 6 (rules 6.40 – 6.48) and PD6B, which deal with service on a person outside the jurisdiction.
ii) There is no analogue to CPR 6.37(5)(b)(i) in Chapter IV. There is no power within Chapter IV which allows service by alternative means.
iii) Rather, in a case where the Hague Service Convention applies, FPR 6.45(1) requires service to be effected through the authority designated under the Hague Convention in respect of the foreign country; or (if the law of that country permits) through the judicial authorities of that country, or through a British Consular authority in that country.
iv) The US Supreme Court has held in Societe Nationale Industrielle Aerospatiale v United States District Court (1987) 482 U.S. 522 that domestic service provisions cannot overreach or modify the mandatory requirements of the Hague Service Convention. That decision should be followed here.
v) Domestic authorities in the civil sphere have emphasised that the court should be reluctant to authorise service by alternative means where the Hague Service Convention is in play.
vi) Therefore, the order of 27 February 2013 permitting email service on the husband in Turkey was null and void, as were all the later orders.
I do not agree with this argument. In order to understand my reasoning it is necessary to go back to basics. What follows does not dilute my primary conclusion that the husband, having been present in court and later obtaining a copy of the judgment, simply cannot impugn the validity of the final order for child maintenance made on 27 February 2013.
According to its first recital the objective of the 1965 Hague Service Convention was “to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time”. It entered into force here on 10 February 1969 and in Turkey on 28 April 1972. In terms of information and communication technology 1965 is a foreign country where they did things very differently. Email and fax did not exist. A US-wide telex service did not start operating until 1966. It did not become common in Europe until the 1970s. Telegrams had been ubiquitous for decades, but these still required physical delivery by the postman.
Therefore if someone was resident abroad in 1965 then in order to be notified of a claim a communication had to be delivered physically to him.
The 1965 Hague Service Convention sought to simplify and expedite service. Each state party established a Central Authority, to which the documents for service would be sent. Article 5 provides:
“The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.”
The premise of the Hague Service Convention was traditional and simple. The person to be served would be present in the “state addressed” and he would have physically delivered to him there the document notifying him of the claim. That premise was not altered by the arrival of the fax. A fax presupposes that there is a receiving console in the “state addressed”. Even the arrival of email did not really change the scenario as in those early days emails would be delivered to substantial fixed workstations situated in the “state addressed”.
This traditional scenario needs to be reconsidered with the advent of portable computing devices such as laptops, and, more recently, smartphones and tablets. The scenario was already unsteady when you consider that for years now a holder of an email account has been able to access his emails on virtually any computer, for example on a friend’s or in an internet café, and is not restricted to one computer in his home or office. In the modern age, where people check their emails all the time on their portable devices, it is inapt to be talking about a document being served and received in any particular place at any particular time. It is “received” from the server wherever the recipient is, whenever he accesses his inbox. It is important to remember that the email reposes on the server and is merely viewed on the device, although it and its attachments can of course be downloaded. Downloading does not of course remove the email from the server. It stays there until it is deleted.
If an email attaching a claim form is sent to a person on a Monday and in that week he travels to five countries on successive days and on each of those days he accesses his inbox, then he can be taken to have “received” it in each of those countries on each day. If one of those countries is England then the claim form has been served in this jurisdiction, and if service by email has been authorised under FPR 6.19 and PD6A paras 4.1 to 4.6, then there will unquestionably have been valid service.
In this case the husband is an airline pilot who travels to this country regularly for personal and occasionally for work-related reasons. He is computer literate and adept at dealing with emails. Indeed they are his preferred form of communication. He has even created his own digital signature. I am sure that when here he will have accessed his emails. It is absurd to think otherwise. But I have not heard evidence about this and do not make a formal finding of fact to this effect. I do not need to do so given my other decisions on Mr Bowen’s case.
I now consider the position if I am wrong in this view of the personal portability and continuous receipt of emails by their addressee. This position also arises if it is the case that following the sending of an email of service the addressee has either not set foot in this jurisdiction or, if he has, has not accessed his email inbox while in it.
In Bayat Telephone Systems International Inc & Ors v Lord Michael Cecil & Ors  EWCA Civ 135  1 WLR 3086 one of the questions was whether an order should have been made permitting service out of the jurisdiction by alternative (electronic) means on international businessmen who had a transient lifestyle and homes in several countries. One of those places was the USA, a Hague Service Convention country. Hamblen J declined to set aside the order permitting service by such means and his decision was appealed.
At  –  Stanley Burnton LJ cited Cookney v Anderson (1863) 1 De G J & S 365 (1863) 46 ER 146, George Monro Limited v American Cyanamid and Chemical Corporation  1 KB 432, Afro Continental Nigeria v Meridian Shipping Co SA (The Vrontados)  2 Lloyd’s Rep 241, and Molins Plc. v G.D. S.p.A.  1 WLR 1741. These all assert the familiar trope, later described by Lord Sumption as “muscular” inAbela, that service out is an exorbitant jurisdiction – an exercise of sovereignty within the country in which service is effected.
Stanley Burnton LJ therefore concluded at  – :
“65. In modern times, outside the context of the EU, the most important source of the consent of States to service of foreign process within their territory is to be found in the Hague Convention (in relation to the State parties to it) and in bilateral conventions on this matter. Because service out of the jurisdiction without the consent of the State in which service is to be effected is an interference with the sovereignty of that state, service on a party to the Hague Convention by an alternative method under CPR 6.15 should be regarded as exceptional, to be permitted in special circumstances only.
66. It follows, in my judgment, that while the fact that proceedings served by an alternative method will come to the attention of a defendant more speedily than proceedings served under the Hague Convention is a relevant consideration when deciding whether to make an order under CPR r 6.15, it is in general not a sufficient reason for an order for service by an alternative method.
67. Quite apart from authority, I would consider that in general the desire of a claimant to avoid the delay inherent in service by the methods permitted by CPR r 6.40, or that delay, cannot of itself justify an order for service by alternative means. Nor can reliance on the Overriding Objective. If they could, particularly in commercial cases, service in accordance with CPR r 6.40 would be optional; indeed, service by alternative means would become normal. In fact this view is supported by authority: see the judgment of the Court inKnauf UK GmbH v British Gypsum Ltd  EWCA Civ 1570  1 WLR 907 at paragraph 47:
‘It was argued by Peters before the judge that the Hague Convention and the Bilateral Convention were a “mandatory and exhaustive code of the proper means of service on German domiciled defendants”, which therefore excluded alternative service in England. The judge did not accept that submission, pointing out that those Conventions were simply not concerned with service within the English jurisdiction. Peters did not repeat that submission on its appeal. Nevertheless, it follows in our judgment that to use rule 6.8 as a means for turning the flank of those Conventions, when it is common ground that they do not permit service by a direct and speedy method such as post, is to subvert the Conventions which govern the service rule as between claimants in England and defendants in Germany. It may be necessary to make exceptional orders for service by an alternative method where there is “good reason”: but a consideration of what is common ground as to the primary method for service of English process in Germany suggests that a mere desire for speed is unlikely to amount to good reason, for else, since claimants nearly always desire speed, the alternative method would become the primary way.’
68. Service by alternative means may be justified by facts specific to the defendant, as where there are grounds for believing that he has or will seek to avoid personal service where that is the only method permitted by the foreign law, or by facts relating to the proceedings, as where an injunction has been obtained without notice, or where an urgent application on notice for injunctive relief is required to be made after the issue of proceedings. In the present case, the only reason for urgency in serving the Defendants arose from the Claimants’ delay in seeking and obtaining their permission to serve out of the jurisdiction: a delay resulting in part from their decision not to proceed with their claim until they had obtained funding for the entire proceedings. Furthermore, their application for permission to serve out was not particularly complicated.
69. This does not mean that a claimant cannot bring proceedings to the attention of a defendant by email, fax or other more speedy means than service pursuant to CPR r 6.40. The Claimants could have done so in the present case. But, as I have indicated, service is more than this. In my view, the judge confused this possibility with service itself.
70. It follows that in my judgment there was no good reason for an order granting permission to serve the Defendants by alternative methods.”
In my judgment these views cannot survive the decision of the Supreme Court in Abela. The decision is clear. The purpose of service, indeed the only purpose of service, is to inform the defendant of the contents of the claim form and the nature of the claimant’s case. That is what the first recital to the Hague Service Convention says. Service is not “more than this”. To my mind the judgment of Lord Sumption really sums up why the old views are now to be regarded as unworldly in this data age. He stated at :
“In his judgment in the Court of Appeal, Longmore LJ described the service of the English Court’s process out of the jurisdiction as an “exorbitant” jurisdiction, which would be made even more exorbitant by retrospectively authorising the mode of service adopted in this case. This characterisation of the jurisdiction to allow service out is traditional, and was originally based on the notion that the service of proceedings abroad was an assertion of sovereign power over the Defendant and a corresponding interference with the sovereignty of the state in which process was served. This is no longer a realistic view of the situation. The adoption in English law of the doctrine of forum non conveniens and the accession by the United Kingdom to a number of conventions regulating the international jurisdiction of national courts, means that in the overwhelming majority of cases where service out is authorised there will have been either a contractual submission to the jurisdiction of the English court or else a substantial connection between the dispute and this country. Moreover, there is now a far greater measure of practical reciprocity than there once was. Litigation between residents of different states is a routine incident of modern commercial life. A jurisdiction similar to that exercised by the English court is now exercised by the courts of many other countries. The basic principles on which the jurisdiction is exercisable by the English courts are similar to those underlying a number of international jurisdictional conventions, notably the Brussels Convention (and corresponding regulation) and the Lugano Convention. The characterisation of the service of process abroad as an assertion of sovereignty may have been superficially plausible under the old form of writ (“We command you…”). But it is, and probably always was, in reality no more than notice of the commencement of proceedings which was necessary to enable the Defendant to decide whether and if so how to respond in his own interest. It should no longer be necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like “exorbitant”. The decision is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum.”
In my judgment the key features of the modern age of international mobility and the use of information and communication technology require a fresh view of the old tropes about service out of the jurisdiction. FPR 6.1 applies to all the rules about service whether in or out of the jurisdiction. It provides that
“This Part applies to the service of documents, except where –
(a) another Part, any other enactment or a practice direction makes a different provision; or
(b) the court directs otherwise.”
In my judgment FPR 6.1(b) certainly permits the court to dis-apply the terms of Chapter III of Part 6 and to authorise email service on a defendant out of the jurisdiction, if there is good reason to do so. The existence of this power is obvious to me in family proceedings where there is no requirement to obtain permission to serve out. It would be bizarre if the position was more restrictive in family proceedings, where there is no such requirement, than in civil proceedings, where there is. Plainly, if the other country is a Hague Service Convention country (or if there exists a bilateral treaty about service with that country) the court would want to know why the treaty route was not being followed. The normal answer would I expect be delay or inability to pin down the defendant’s location. Those would be good reasons. I note that in Bayat at  Stanley Burnton LJ accepted that there were some special circumstances where service by alternative means would be appropriate even where the Hague Service Convention was in play. So the pass has been sold. In my opinion the effect of Lord Sumption’s judgment in Abela …with which Lords Neuberger, Reed and Carnwath agreed) is merely to lower the bar somewhat.
In my judgment the husband has not shown that Ryder J was wrong to authorise email service on the husband on the facts of this case. Indeed on the facts I would say that he was plainly right. The fact that he did not appear to enquire why the use of the Hague Service Convention was not practicable is at its highest a procedural lapse and certainly not any kind of fatal defect.
If I am wrong in this analysis I would say finally that I am perfectly satisfied on the facts of this case that, for the reasons given above, the husband has accepted voluntarily delivery to him of all relevant documents within the terms of the final sentence of Article 5 of the Hague Service Convention. There was no proper evidence put before me that Turkish law prohibits service by post or email. All I had was some rather exiguous internet researches by Mr Bowen. In the absence of any proper evidence in the normal way I take Turkish law to be the same as English law (which permits service by post or email).
For all these reasons the application of the husband to set aside the order of 27 February 2013 and all subsequent orders, which I deem him to have made, is dismissed.
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