PRESSING THE WRONG BUTTON: THE PERILS OF EMAIL “REPLY ALL” IN LITIGATION (OR ARBITRATION)
Many, if not all, of us will have made some errors with emails on some occasion. There is a danger, however, when this happens in litigation. This can be seen in the judgment of Mr Justice Popplewell in T -v- V  EWHC 565 (Comm).
The applicant was seeking an order removing an arbitrator on the grounds that she had improperly made a peremptory order. (The application was unsuccessful).
The judgment contains a detailed account of the steps taken in the arbitration and the arbitrators attempts to avoid delay. During the email correspondence one of the parties accidentally copied the arbitrator and the opposing solicitor (“A”) into the inter partes corespondence.
In response to issues over payment of the arbitrator’s fees one of the parties “T” sent an email.
“That letter was copied by email to Mr. G’s client, T. About an hour later T sent a responsive email addressed to Mr. G saying, “Well said. My only criticism is that you should have told her to resign”[that is a reference to arbitrator]. T, no doubt unintentionally and by pushing the reply all button, copied that response not just to Mr. G but to A and to the relevant solicitor at Griffin Law. Mr. G sent a response promptly to T, copied to the arbitrator and to the other side saying:
“Anthony, I realise this is an error on your part. I stress and confirm [A] is a professional and I am sure you would not resign because you as a professional. I am sure she will take your word that you will pay soonest and will make her decisions as she confirms this will not affect her judgment.” (sic)
A little under half an hour later T responded to Mr G, again copied to A and Griffin Law, “Paul, can’t you take a joke?” Mr. G, no doubt mindful of trying to diminish any damage that might be caused, sent an email to T copied to A saying, “I appreciate you are under stress and I will ignore this message. I appreciate this is difficult for you. You have told you that in error, you have sent these emails to the arbitrator and you apologise to her”. (sic)”
This led to further correspondence:
“We also refer to the email that [T] sent following receipt of the letter. Clearly this email was not meant for the eyes of the arbitrator, however, it goes to show your client’s contemptuous attitude towards the arbitration and also the fact that he is well aware of what is happening. One can only assume that he has been aware of what has occurred all along and positively giving instructions to delay and inhibit the progress of the arbitration.”
The accident copying of an email to the arbitrator did not play any part in the overall decision of the court (or the arbitrator). However the case illustrates how easily this is done. There are real dangers with “reply all” or failing to check who is receiving the email. Further the sending of an email to a number of parties, including the client, poses a major risk if the client responds by pressing “reply all”. It is a dangerous thing to do.