Arbitration proceedings — Service by e-mail — Whether effective service — Whether e-mail address to be agreed by parties — Application dismissed
The applicant chartered a ship owned by the respondent under a charterparty that provided for disputes to be resolved by arbitration in London. A dispute arose over an invoice for outstanding hire that the respondent claimed to be due. Following postal correspondence between the parties, the respondent sent an e-mail to the applicant, giving notice of an intention to commence arbitration proceedings if the claimed sum were not paid. That message was sent to an e-mail address that had not appeared on any previous communications between the parties, although it appeared in the Lloyds Maritime Directory with the postal address and telephone numbers of the applicant’s agent. A series of further communications were sent to the same e-mail address, culminating in a final arbitration award in the respondent’s favour, which was also sent to the appellant by post.
The applicant made an application, under section 68 of the Arbitration Act 1996, to set aside the award, claiming that it had been unaware of the arbitration proceedings until it received the final award by post. It submitted that the proceedings had not been effectively served in compliance with section 76 of the Act because the respondent had not served them by any agreed method of service within section 76(1) or “any effective means” of service within subsection (3). It argued, by analogy with the position under the CPR, particularly CPR 6.2(1)(e) and practice direction CPR 6 PD, that e-mail service of arbitration proceedings should be regarded as effective only if the recipient had agreed to accept service at the e-mail address to which the document had been sent, or if, in fact, the notice had reached the relevant legal or managerial personnel. Evidence put forward by the applicant indicated that the e-mails had been received by customer service staff who had ignored them as “spam”, assuming that serious legal correspondence would have been sent through appropriate channels, and that the messages were among the many junk e-mails that contained apparently legitimate, but in fact spurious, legal correspondence.
Held: The application was allowed.
The provisions of CPR 6 were not an appropriate benchmark by which to judge the effectiveness of e-mail service in the context of an arbitration. The CPR catered for all kinds of litigants, whereas arbitrations were usually conducted between businessmen represented by lawyers. The reference in section 76(3) to service by “any effective means” was purposely wide, and contemplated that any means of service would suffice provided that it was a recognised means of communication and was sufficiently effective to deliver the document to the party to whom it was sent at its address for the purpose of that means of communication. In that context, there was no reason why delivery of a document by e-mail, a method habitually used by businessmen, lawyers and civil servants, should be regarded as essentially different from communication by post, fax or telex. In an arbitration context, it was not essential, for effective service, that the e-mail address used should have been notified to the serving party for use in the context of the relevant dispute.
Clicking the “send” icon did not automatically amount to good service; the e-mail had in fact to be dispatched to the e-mail address of the intended recipient, and not be rejected by the system. A sender might not be able to prove receipt unless it had required confirmation of receipt. Moreover, where there were several e-mail addresses for different divisions of the same company, possibly in different countries, dispatch to a particular e-mail address might not be effective service. However, none of those difficulties arose in the instant case. The e-mails had been received at an e-mail address that was held out to the world as the applicant’s sole e-mail address: Stoomv Maats De Maas v Nippon Yusen Kaisha (The Pendrecht) [1980] 2 Lloyd’s Rep 56 applied. Service was not rendered ineffective just because, when it was received, a particular employee did not think that a serious legal matter would be sent to that address. The e-mails were in plain and straightforward terms, and bore none of the hallmarks of “spam”, but, on the contrary, called for serious attention.
David Lewis (instructed by Jackson Parton) appeared for the applicant; Ravi Aswani (instructed by Swinnerton Moore) appeared for the respondent.
Sally Dobson, barrister
