Service by email – a warning shot

More and more often, parties within legal proceedings are using email as their preferred method of serving documents. However, the recent case of Glencore Agriculture BV v Conqueror Holdings Ltd [2017] EWHC 2893 provides a warning that when using such a method, steps should always be taken to ensure that the email address you are using for service is the correct one.

In this particular case, the Defendant had issued arbitration proceedings against Glencore Agriculture BV. All documents and the proceedings themselves were sent to the email address of Mr Oosterman, an employee of Glencore Agriculture.

The defendant did not receive any response to their emails and eventually obtained an arbitration award exceeding $43,000 plus costs. Subsequently, an application to set aside judgement was made on the basis the employee to whom all documents had been sent had neither express nor implied authority to accept service and had in fact left the company during the course of proceedings.

The Court in this case considered whether service by email directly to Mr Oosterman (a relatively low ranking employee of Glencore Agriculture BV) was effective service. In judgment, it was held:

“I therefore reject [the] 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 Judge went on to hold:

“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.

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.”

As a result of this decision, the application to set aside was successful.

This case therefore should serve as a reminder that whilst service by email is now often thought to be a far more convenient method of service, it also presents another hurdle for the serving party. Particularly when dealing with larger companies or agencies, there may be various email addresses available and noted on paperwork. Nevertheless, the case of Glencore Agriculture BV v Conqueror Holdings Ltd has now made it clear that simply using an employee’s email address (even o