SERVICE BY EMAIL: WHO ARE YOU SERVING? A POINT TO WATCH
The judgment in Glencore Agriculture BV v Conqueror Holdings Ltd [2017] EWHC 2893 highlights a crucial point about service by email. If you are (and are allowed to) serve by email – check that the address being used is the the appropriate address, and the recipient is a properly authorised person to accept service.
THE CASE
The defendant issued arbitration proceedings against the claimant. It served those proceedings (and all subsequent documents) at the email address of one of the claimant’s employees. There was never any response to the emails sent. The defendant obtained an arbitration award for US$43,176.27 and costs. The defendant, upon finding out about the award, issued proceedings to set is aside. It transpired that proceedings were being sent to a relatively low-level employee. He left the claimant company part-way through the proceedings.
THE ISSUES
The question was whether proceedings had been properly served. The claimant argued that service on a low-level employee did not constitute good service.
AGENCY PRINCIPLES DID NOT APPLY
The court rejected the defendant’s contentions that agency principles applied.
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“I therefore reject Ms Barrett’s submission that service was sufficient in this case merely because it was sent to a personal email address at Glencore Grain of someone who had had some involvement in the underlying events. It was sent to Mr Oosterman, and the answer to the question whether it amounted to effective service under s.76 is determined by whether he had actual or ostensible authority to receive it on behalf of Glencore Grain.”
THE RECIPIENT DID NOT HAVE ACTUAL AUTHORITY
Further the court rejected the argument that the employee had actual authority (express or implied) to accept service.
“There is no basis for finding that Mr Oosterman was expressly authorised to accept service of arbitral proceedings and all the available evidence suggests the opposite.
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Nor is there anything in the facts of the present case to support a finding of implied authority. The most that can be said is that Mr Oosterman was a representative of the operational department who had sent operational communications in relation to the performance of the charterparty and the events giving rise to the dispute. That is not sufficient to give rise to the inference that he was cloaked with authority to assume the serious and distinct responsibility for accepting service of legal process. It cannot be said that he thereby impliedly had authority to handle any legal dispute arising out of the voyage, still less to accept service of legal or arbitral process and deal with it.”
NO OSTENSIBLE AUTHORITY
The court rejected the argument the argument that the employee had ostensible authority.
THE NET RESULT
The arbitration proceedings were set aside.
THE FAILURE TO CHECK – WAS AN EXPENSIVE OMISSION
The failure to consider whether this employee had authority to accept proceedings, or to consider why there had been no response at all led to: (i) failed arbitration proceedings; (ii) the costs (presumably) of setting the arbitration aside.