Lead Forensics
Prettys Solicitors Ipswich

Resources

Top

A reminder to ensure notices are served on the correct person

January 2018 - Issue 101

Glencore Agriculture BV (formerly Glencore Grain BV) (Glencore) v Conqueror Holdings Limited (Conqueror) considered whether an email sent to an employee’s email address constituted effective service of a notice of arbitration.

Conqueror had chartered their vessel to Glencore for the purpose of carrying bulk loads of corn from Ilychevsk in the Ukraine to a port in the Egyptian Mediterranean, Damietta. The contract contained an arbitration clause.

The dispute arose following delays at the port resulting from an employee of Glencore (Mr Oosterman) sending an email instructing the vessel to remain at the port. Mr Oosterman had sent the email from his personal company email address, followed by a further two emails re-affirming the instruction.

As a result of the delay, Conqueror claimed damages for the detention and sent a letter before action to Mr Oosterman’s personal company email address. All additional correspondence was also sent to Mr Oosterman’s email address. No response was received from Mr Oosterman. Subsequently, in accordance with the arbitration clause in the contract, Conqueror’s chosen arbitrator became the sole arbitrator and issued a final award to Conqueror. Glencore only became aware of the arbitration proceedings when they received the final award via post.  

Glencore applied to have the final award set aside on the basis that the notice of arbitration sent to Mr Oosterman did not constitute effective service. The court considered that effective service under the Arbitration Act 1996 depended on an application of the agency principles, requiring authority to accept service of legal proceedings.

Did Mr Oosterman have the relevant authority?

The question was whether Mr Oosterman had either actual or implied authority to accept service of legal proceedings. An analysis of Mr Oosterman’s position was carried out which revealed Mr Oosterman’s main role was as a ‘junior back office employee’. This meant he was involved in handling documentation and execution matters, but once a dispute arose, the matter was to be referred to Glencore’s legal department. The court agreed that this role meant Mr Oosterman did not have authority to accept service of legal documents, either expressly or implied. Conqueror disputed this and argued that because Mr Oosterman was the individual who had dealt with the issues which resulted in the dispute, he was in a position to accept service and they had therefore served the notice of arbitration correctly.

The court explored the difference between sending an email to an individual employee’s email account and a generic company email address (for example info@xyz.co.uk). Sending an email to an individual’s email address tends to mean the recipient of the email has been identified, whereas the recipient of an email sent to a generic company email address is not known. When considering effective service via email, the court commented that effective service must be considered in the same manner as personal service; the person’s authority to accept service arises from their role within the organisation.

In light of this, if a company advertises a generic company email address, although the recipient is likely to be unknown, it can be reasonably assumed that the person who opens the email has authority to deal with the email contents. This would constitute valid service. Similarly, the principle is considered in the same manner as if post was sent to the company office. An employee responsible for handling the post will have the authority to ensure the documents are brought to the attention of those who are responsible for dealing with the documents on the behalf of the company.

The Hon. Mr Justice Popplewell advised that the principles of agency law apply because ‘those are the principles which govern whether the acts of an employee bind the company’. The court subsequently granted the claimant relief.

The case serves as a useful reminder on the importance of being careful and cautious in ensuring notices are addressed correctly and served in an effective manner. If in doubt, get in touch by calling 01473 298121 and we will be able to confirm your position in the specific circumstances.

Legal 500LexcelConveyancingChambers UK