Busy lawyers who are married to, or have partners who are, relatively normal people are likely to have some experience of being told that they really need to switch off. And I am not talking about a concerned suggestion that they switch off and slip into a hot scented bath, relax and take it easy; I mean ‘switch that bloody phone/Blackberry/laptop/netbook/smartphone/i-pad bloody off’ because you keep checking it when you are supposed to be looking after the children, painting the hall, doing the shopping, watching Othello or even making love. Well now you have the perfect riposte: ‘I would like to wash the car, go out and do the Xmas shopping, pick up the children, be a more considerate lover etc but Lord Justice Moore-Bick insists that I watch my e-mail in-box obsessively, so I can’t’.*
That at least is my understanding of a new ruling in the Administrative Court on the e-mail service of a notice relating to extradition: see {i}Salazar-Duarte v Government of the United States{/i} {[2010] EWHC 3150 (Admin): http://www.bailii.org/ew/cases/EWHC/Admin/2010/3150.html}.
While I can always be relied on to exaggerate when the opportunity presents itself, there is a kernel of truth in my opening. It is true that this was an extreme case – the case concerned extradition appeals and a strict statutory timetable is set out for such appeals. But no lawyer is a stranger to strict timetables (excepting a very few with extremely high indemnity insurance premiums) so the words of Lord Justice Moore-Bick are of wider application, especially bearing in mind that some timetables are a lot tighter than the one that applied here. To summarise relatively fairly, ‘if a message is in your inbox, you are deemed to have read it’. Here is what he actually said:
{i}23. It cannot be doubted that e-mail has become a normal method of communication; indeed, it is often preferred to fax. Letters and other documents are routinely sent as attachments to e-mails and once one accepts that documents may be sent electronically by fax there are no grounds for distinguishing between fax and e-mail. The only distinction is that an e-mail (and any attachment) has to be opened in order to read its contents, whereas a fax may be read as it comes off the machine, but that is a distinction without a difference. If anything, it renders an e-mail more akin to transmission by post, where again the envelope has to be opened in order to read the contents. If the Secretary of State can discharge her duty to inform the person concerned by sending a letter to his solicitor, the only question is whether it is necessary for the solicitor to have actual knowledge of its contents in order for him to be informed that the order has been made.
24. … the person concerned is informed of the order when his solicitor receives a letter, whether by post, fax or e-mail, which informs him that it has been made. Delivery is sufficient, because once the letter has reached the solicitor’s office the time at which it is opened and read is within his control. Just as he cannot rely on a wilful failure to open and read it, so too he cannot rely on absence on other business or the lack of efficient procedures within his office for opening and distributing mail. Exactly the same considerations apply to communications by fax or e-mail. The solicitor cannot say that he was not informed of the order because of a failure of arrangements within the office to put the fax on his desk or forward the e-mail to him; nor can he rely on his absence from the office at the time when the letter, fax or e-mail is received. Business can only be conducted on the understanding that communications of this sort are read when they are received. I think it can reasonably be inferred, therefore, that when Parliament decided to impose a duty on the Secretary of State to “inform” the appellant it was entitled to, and did, assume that the appellant (or anyone else who could properly be informed on his behalf) would inform himself of the contents of a letter, e-mail or fax immediately upon its receipt. For practical purposes, therefore, it must have proceeded on the basis that delivery of the letter to the appellant (or in this case his solicitor) amounts to the communication of its contents on the day of receipt. In my view the word “inform” is to be construed so as to give effect to that assumption.
25. … To interpret section 100(1) [of the Extradition Act 2003] as requiring the Secretary of State to bring the existence of the order to the actual notice of the person concerned, or that of his solicitor, as opposed to simply requiring the delivery of a letter or electronic message containing the necessary information, would render the date of performance of that duty very uncertain and would risk seriously undermining the statutory provisions.
26. For all these reasons I consider that the appellant was informed of the order on 16th June when the letter reached his solicitor’s office as an attachment to an e-mail. A copy of the notice of appeal was not given to the CPS until 1st July and accordingly, whether the last day for giving notice was 29th June (as I think) or 30th June, the appeal was out of time. It follows that this court has no jurisdiction to entertain it and it must be dismissed.{/i}
So perhaps I am not exaggerating all that much. Is this an inevitable development which puts the emphasis on efficient team-work and good office organisation, or a step too far? Will you be allowed to have a life beyond work? (I appreciate that the last question is only relevant to that tiny minority of IT lawyers who actually do have a life beyond work – don’t write in on that point.)
The bad news for those of you seeking every opportunity to skive out of domestic duties is that Lord Justice Moore-Bick’s stricture does not apply on Saturdays and Sundays.
My thanks go to Anand Doobay of Peters & Peters LLP, who drew this case to my attention, and who may well write more sensibly about its implications.
*{i}Use of this riposte is entirely at the reader’s risk. The author accepts no liability for any costs, losses or emotional damage arising from its use, including but not limited to such costs, losses and damage arising from the near-inevitable divorce.{/i}
