David Hodson and David Allison aresolicitors with The Family Law Consortium, London. The authors acknowledge thehelp of Paul Terry of Crown Communications (email paulterry@crownbc.com,tel 0171 727 7272) who helped in the case and with this article, and who advisesa number of law firms on their IT.
This article first appeared in Family Law (Jordans Publishing), and weare grateful for permission to publish it here.
An English court in chambers, specifically thePrincipal Registry of the Family Division in London, has made what is believedto be the first order in family proceedings allowing service by e-mail. Just aswith service by fax, this is likely to be become a norm for the future. However,whilst the technology, and in particular the certainty of receipt, is still notyet wholly sophisticated enough for the requirements of the law, practitionersmust use such procedure with care.
In what circumstances was the order made and what mustpractitioners consider when seeking to use e-mail for service? How can this ITtool be used to help improve the practice of family law?
Background to the Case
The parties in the case were English. They lived in theUK after their marriage and their children were born here. The husband moved tothe USA with the family in connection with his work. Initially they lived inIllinois, and then California. The marriage broke down and the wife and childrenreturned to the English town in which she had been brought up, where she boughta house as a partial separation of their assets and where the children entered alocal school. Apart from a flat, the husband’s wages and a works relatedpension being in California, all assets were in England or offshore. However,about six months after separation and before he had contacted lawyers, thehusband heard rumours that his wife was considering issuing for divorce inCalifornia. He took local advice and found out that the settlement would be veryhigh as the Californian courts sometimes take account of future earnings as ifthey were present-day assets.
He contacted us and within four hours, through the useof e-mail, the petition had been issued (the relevant page of the statement ofarrangements was printed out by him and signed and faxed across). England paysvery little regard in forum disputes as to who is the first to issue (see SFLAGuide to Good Practice in International Cases (Solicitors Family LawAssociation, 1999), £30). However, in some countries it has a much greaterrelevance, so in default of agreement about forum, practitioners have to adoptthe safety first approach: issue first just in case.
Within a day and a half it became obvious that the wifehad now issued in California. The next issue was service. There is a series ofcases in California, particularly Re Marriage of Hanley (1998) Cal App 3d1109, which suggests that it is the first to serve that takes priority in forum.While there are later cases pointing the other way, ie service first is notfundamental to gaining forum in California, it is nevertheless important toavoid such issues even being litigated. Accordingly, steps were taken to servethe wife immediately – just as the wife was attempting to serve the husband.
The English inquiry agents discovered that the wife hadleft home a couple of days before and was seemingly evading service. She couldnot be found. However, even at the moment the agents were outside her empty homeattempting service, the husband was receiving e-mails from her. She had clearlytaken her laptop with her. The two continued to communicate by e-mail. After 48hours of continued inability to find her and to serve her, we applied for andobtained an ex parte order for substituted service. It provided that:
(1) copies of the petition and statement ofarrangements be sent to her at her e-mail addresses, together with a letterindicating where the hard copies could be received – a relative’s house ashort distance from where she normally lived;
(2) hard copies of the originating documents withnotice of proceedings and the acknowledgement of service form be sent to thenearby address for collection.
Within a matter of days, an acknowledgement of servicewas filed. Although the wife made an application for a stay of the Englishproceedings, this was followed by a Hemain (Hemain v Hemain [1988] 2 FLR388) undertaking, and within a month the case was settled overall with anEnglish divorce and English final financial settlement.
The Law
The Family Proceedings Rules 1991 (SI 1991/1247) makeno reference to e-mail. However, the new Civil Procedure Rules 1998 (SI1998/3132) do. Rule 6.2(1) provides:
‘A document may be served by any of the followingmethods:
- personal service in accordance withrule 6.4;
- first class post;
- leaving the document at a place specified in rule 6.5;
- through a document exchange in accordance with the relevant practice direction; or
- by fax or other means of electronic communication in accordance with the relevant practice direction.’
The relevant practice direction is PracticeDirection Service 6PD. It provides (at para´3.3):
‘Service by other electronic means may take placeonly where:
- the party serving the document and the party on whom it is to be served are both acting by legal representative,
- the document is served at the business representative’s business address, and
- the legal representative who is to be served has previously expressly indicated in writing to the party serving his willingness to accept service by this means and has provided:
- his e-mail address, or
- other electronic identification such as an ISDN or other telephonic link number.’
However, on its face, this cannot apply by extension tothis sort of situation in family law where service is on a party personally. Atthe very least, the practice direction requires service by e-mail to a legalrepresentative’s business address and for the legal representative to haveindicated in writing a willingness to accept service by e-mail. The CivilProcedure Rules 1998 do not of course apply automatically in all familyproceedings and there is no equivalent provision in the Family Proceedings Rules1991 or indeed the County Court Rules or Supreme Court Rules.
The relevant rule in the Family Proceedings Rules 1991is r 2.9(9), which states:
‘An application to substitute some other mode ofservice for the modes of service prescribed by paragraph (1) or to substitutenotice of the proceedings by advertisement or otherwise, shall be made ex parteby lodging an affidavit setting out the grounds on which the application ismade; and the form of any advertisement shall be settled by the DistrictJudge.’
Before the court will make an order for substitutedservice the district judge must be satisfied that service in the manner proposedwill come to the attention of the intended recipient and that full inquiries asto his/her whereabouts have been made.
It was on this basis that the court made thesubstituted service order. It was satisfied on the evidence of the exchange ofe-mails between the parties that e-mails to a specific address would comequickly to her attention.
The IT
It is one thing to send an e-mail. When it comes tosatisfying the requirements of the law, other issues arise.
First, there is evidence of sending and of receipt. Asto the former, we copied the e-mail to ourselves and then printed out ourreceived copy as evidence of sending and of the time of sending (of course, onecould alter the clock on the PC to show a false time of sending but in this itis no different from the fax machine). As to evidence of receipt (or indeed factof being opened), this is more difficult. Most e-mail clients can requestnotifications of delivery and read (in Outlook 98 and 2000, it is possible toask for a receipt: view/options, new mail message). However, whilst this maywork on local networks and with some Internet service providers, many of thembar this facility simply to reduce the volume of e-mail which would otherwiseresult. In this case, the wife was using both Yahoo! and BT Internet andalthough notifications of delivery and read were requested, none wereforthcoming.
There is, however, direct evidence of non-receipt. Justlike the Post Office, which will always or invariably send back an undeliveredletter, so undelivered e-mails are notified to the sender. This can arise if,for instance, one letter of the address is misspelt. Often the notification iswithin hours and certainly within 48 hours at the very latest. The realitytherefore is that the only evidence of receipt is passive, ie if no transmissionerror is received from the local mail forwarding server within at least 48 hours(this time-scale can vary a little) then it is reasonable to assume that thee-mail has been safely received by the recipient’s host mail server andtherefore delivery and only delivery can be assumed. Accordingly, if no returnfrom the Internet service provider is received, the sender can be confident thatit has been received. Any affidavit of substituted service should verify therehas been no ‘undeliverable’ notification, just as the affidavit in supportof substituted service should make it clear that the recipient regularly opensall e-mails.
A served document can be read by all able to read thelanguage in which it is written. If the recipient cannot read English, atranslation has to be given. A similar problem arises with service of documentsby e-mail. It is, to us, one of the sheer lunatic elements of IT that a new wordprocessing system often cannot be understood, ie read, by earlier versions. Forexample, a computer with Word 6 cannot read documents written in Word 7. Sendinga document in the latest word processing package is no good for service as itmay not be possible to be read by the recipient. Although we use Word 2000, wesent the documents in both Word 6 and Basic Text (*.txt format) which is a basictext system and read by most PCs. We recommend similar action is taken whenserving attachments with an e-mail.
The Future
The volume of e-mail communication between lawyers andclients and between lawyers has increased rapidly even over the past year or so.This will continue. Family law practice must keep pace. Service by e-mail willcontinue to be rare, but for a number of parties, especially those on the move,it will be very applicable. Safeguards, both as to law, practice and ITpractical elements, are needed, as we have set out in this article.
To make it yet easier, the stage we need to reach soonis the issuing of applications by the court. It should be possible for a lawyerto e-mail the originating process or application to a court, have the feedebited to an account with the court office, for a court seal and perhaps dateof hearing endorsed and to be e-mailed back to the lawyer. This would save muchclerk time for issuing, expedite turnaround of work, save on court staff, atleast during court opening hours, and be more efficient. It is already happeningin some courts around the world and we invite the Lord Chancellor’s Departmentto bring forward plans to allow this to occur in family courts in the UK.
Service can now occur by e-mail, albeit substitutedservice. The time will come soon when the use of e-mail will overtake ordinarypost. In family law, we should be exploring the ways now to use IT to make iteasier for us in our practices, in the courts and in the manner of our working.We would welcome hearing from other lawyers on how IT can be better used withinfamily law: e-mail dh@tflc.co.uk.
