Judgment Approved by the court for handing down. |
AC-2025-LON-002936
IN THE MATTER OF AN APPEAL BY CASE STATED OF MAIDSTONE MAGISTRATES’ COURT
Royal Courts of Justice
Strand London WC2A 2LL
Before :
HON SIR PETER LANE
Between :
MOHAMMED BEROW | Appellant |
- and - | |
MAIDSTONE BOROUGH COUNCIL | Respondent |
Mr Gabriel Nelson (instructed by LSL Solicitors) for the appellant
Mr Gary Grant and Mr Armin Solimani (instructed by Mid Kent Legal Services) for the respondent
Hearing date: 26 February 2026
Approved Judgment
This judgment was handed down remotely at 11am on 17/03/2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
1 The appellant appeals, by way of case stated, against the decision of Maidstone Magistrates’ Court on 22 April 2025 to dismiss the appellant’s appeal against the decision of the respondent on 29 August 2024 to revoke the appellant’s dual private hire and hackney carriage drivers’ licence (“the licence”). The Magistrates’ Court found that the appeal had been filed outside the statutory time limit of 21 days, which began to run on 2 September 2024, when Ms Lorraine Neale, the respondent’s senior licensing officer, sent the reasons for the decision and information about the appeal process to the appellant by email. The appellant’s case before the Magistrates’ Court and before this Court is that the email of 2 September was not validly served on the appellant; and that the appellant did not receive the requisite notice of reasons (from which the time limit begins to run) until a date in October 2024, with the result that his appeal to the Magistrates’ Court was in time and should not have been dismissed on the basis it was out of time. The Magistrates’ Court’s reasons for rejecting the appellant’s case were as follows:
“We considered s. 233 the Local Government Act 1972 and Electronic Communications Act 2000 and found the email sent by the Respondent on 2nd September 2024 was effective and the Respondent’s (sic) caused the Appellant to receive the notice.”
2 The Questions the appellant asked the Magistrates’ Court to state for the opinion of the High Court (and which it so stated) are as follows:
Was the Council’s decision to email the notice to Mr Berow good service within the meaning of s. 300(2) Public Health Act 1936 and s. 233 of the Local Government Act 1972, when it was agreed that the Council gave no notice that they would use that method of service, nor, correspondingly, did Mr Berow have the opportunity to assent to that method of service.
Was it wrong in law for the Court to find that the Council’s chosen method of email service was good service for the purposes of s. 300(2) Public Health Act 1936 and s. 233 of the Local Government Act 1972.
On what date was effective service made on Mr Berow of the decision of the Council.
3 The appellant had held dual driver’s licence since April 2019. Had it not been revoked, the revoked licence would have expired on 24 April 2025. The decision of 29 August 2024 to revoke the licence was taken on the basis that the appellant was considered not to be a fit and proper person. Two days before the meeting, the appellant confirmed to Ms Neale details of his solicitor, including the solicitor’s email address, along with a declaration that the appellant authorised the respondent to release any information and discuss his case with the “appointed solicitor”, Mr Ahmed.
4 As confirmed by the respondent’s minutes of the meeting, the appellant was told at the meeting of the decision to revoke and that “full reasons will be provided in the written decision which will be circulated in the next few days.”
5 The decision notice containing the reasons, together with information regarding the right of appeal, was attached to an email from Ms Neale to the appellant’s Gmail account. The email is recorded as having been sent on 2 September 2024 at 3:58pm. It was copied to the email address of the solicitor, Mr Ahmed. Delivery receipts in respect of both the appellant and Mr Ahmed were received by Ms Neale, each at 3:58pm on that day. The receipt messages stated “Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server.” Mr Grant informed me that the effect of the message is that the respective email systems of the respondent and of the appellant and Mr Ahmed had “shaken hands” in an electronic sense. Mr Nelson did not demur from this description.
6 On 10 October 2024, Ms Neale emailed the appellant informing him that the 21 day period for an appeal had now elapsed, and therefore requested the return of his licence, which on that basis had permanently expired. The appellant did not respond to this email. On the 15 October 2024, the appellant emailed Ms Neale to complain about the conduct of other taxi/private hire drivers. It was thereby apparent to Ms Neale that the appellant was still driving. She therefore attempted to contact the appellant on his mobile and landline telephone numbers, without success, and sent him two emails on 15th and 17 October, asking the appellant to contact her urgently.
7 On 18 October 2024, as Ms Neale had not received a response to her emails of 15 and 17 October, she emailed the appellant again asking him to contact her by 5pm on 21 October. She informed him that his renewal application for a hackney carriage vehicle licence (my emphasis) would not be processed until he did so.
8 On the 21 October 2024, Ms Neale received an email from the appellant. In this email, the appellant said “Can you please send me the decision notice of the committee again because I have contacted a legal adviser and the old letter went to my spam folder and I cannot find it.” Exhibit LN/10 to Ms Neale’s witness statement, which exhibits this email, also shows that it was sent in reply to Ms Neale’s email of 2 September 2024, albeit that the subject description of the appellant’s email had been changed from “RE: Licensing Sub Committee 29th August 2024” to “Descion (sic) of the committee”.
9 The appellant and Ms Neale had a conversation by telephone on the same date, which was recorded in notes by Ms Neale and communicated by her by email to the appellant on 22 October. In this, Ms Neale said:
“You informed me yesterday, that you did not appeal because you were waiting to receive the written decision sent 2nd September 2024 from us You initially advised that you had not received the email of 2nd September from me but later stated you had not seen it, as it had gone into your spam folder. Also, during that conversation when the hearing was being discussed with you, I asked you why you did not chase the authority for the decision notice if you believed it had not been sent especially as you would have been informed at the meeting it would be sent, you told me that you were not informed at the meeting that was the case and you were only told you were revoked, I attach the minutes from that meeting which clearly confirm you were advised “that a written decision notice with full reasons would be provided”. You also informed me that you dismissed your legal advisor as you were unhappy with how they represented you and so they did not contact you to advise next steps when they were copied into the email to you. Unfortunately, despite your explanations there is no opportunity for you to appeal the decision of revocation now. As explained you can submit a new application in the future, our policy stipulates you cannot submit an application for at least one year if you have had a licence revoked, the new application would be considered when submitted.”
10 On the 24th October 2024, the Appellant’s current solicitors, LS Licensing Lawyers, sent a letter to the respondent. The solicitors said:
“Although the decision is dated for September, we are told that our client was not aware of the written decision until he received your email of 10th October. It appears that the notice may also have been sent by email but was considered to be ‘spam mail’ by his system and so filtered and was never seen or read. His system apparently deletes such spam after a period of one month.
The situation is therefore similar to a letter that is never delivered and the date of your received email on 10th October should therefore be taken as the date of notification.”
11 Also on 24 October, Ms Neale emailed Mr Ahmed to ask if he continued to advise the appellant “after the meeting [of the sub-committee] and specifically in relation to the decision notice”. On 28 October, Mr Ahmed replied to “confirm that Mr Berow was fully advised following the sub committee meeting and also about its decision.”
Statutory framework
12 The power to grant licences to hackney carriage drivers and private hire drivers are contained in the Town Police Clauses Act 1847 and the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”). Sections 51 (private hire) and 59 (hackney carriage) of the 1976 Act require the district council granting drivers licences to be satisfied that the person applying is a fit and proper person.
13 Section 61 of the 1976 Act provides as follows:
“(1) … [b] any other reasonable cause.
(2) (a) Where a district council suspend, revoke or refuse to renew any licence under this section they shall give to the driver notice of the grounds on which the licence has been suspended or revoked… within fourteen days of such suspension, revocation or refusal and the driver shall on the demand return to the district council the driver’s badge issued to him in accordance with section 54 of this Act.
(2A) Subject to subsection (2B) of this section, a suspension or revocation of the licence of a driver under this section takes effect at the end of the period of 21 days beginning with the day on which notice is given to the driver under subsection (2)(a) of this section.
(2B) If it appears that the interests of public safety require the suspension or revocation of the licence to have immediate effect, and the notice given to the driver under subsection (2)(a) of this section includes a statement that that is so and an explanation why, the suspension or revocation takes effect when the notice is given to the driver.
(3) Any driver aggrieved by a decision of a district council under subsection (1) of this section may appeal to a magistrates’ court.”
14 Appeals made pursuant to s.61(3) can be made under section 77. Section 77 (“Appeals”) in turn provides that:
“(1) Sections 300 to 302 of the Act of 1936, which relate to appeals, shall have effect as if this Part of this Act were part of that Act.
…”.
15 Section 300 of the Public Health Act 1936 states:
“(1) Where any enactment in this Act provides— (a) for an appeal to a court of summary jurisdiction against a requirement, refusal or other decision of a council; or … the procedure shall be by way of complaint for an order, and the Summary Jurisdiction Acts shall apply to the proceedings.
(2) The time within which any such appeal may be brought shall be twenty-one days from the date on which notice of the council’s requirement, refusal or other decision was served upon the person desiring to appeal, and for the purposes of this subsection the making of the complaint shall be deemed to be the bringing of the appeal.
(3) In any case where such an appeal lies, the document notifying to the person concerned the decision of the council in the matter shall state the right of appeal to a court of summary jurisdiction and the time within which such an appeal may be brought.”
16 Section 285 of the 1936 Act (service of notices, &c.) provides as follows:
“Any notice, order, consent, demand or other document which is required or authorised by or under this Act to be given to or served on any person may, in any case for which no other provision is made by this Act, be given or served either-
(a) by delivering it to that person; or
....”
17 Commenting on section 285, paragraph 24 of the respondent’s skeleton argument says it is “accepted that none of these methods apply in this case.” In the course of Mr Nelson’s submissions to me at the hearing, Mr Grant indicated that this concession was no longer made; and that the respondent submits that the email of 2 September 2024 constituted “delivery” to the appellant for the purposes of section 285(a). Mr Nelson objected to this belated change of stance. I do not consider that it matters whether section 285(a) is engaged or whether, as the respondent’s skeleton argument contends, service was effected under the common law. The respondent’s case is the same on either basis; namely, that the respondent’s email of 2 September 2024 constituted, in all the circumstances, service of the notice for the purposes of triggering the time limit for appealing the respondent’s decision. The appellant’s case is that it did not. In fairness to the appellant, I shall nevertheless approach the case on the basis that the respondent’s position is as stated in paragraph 24 of its skeleton argument.
18 Section 233 of the Local Government Act 1972 (service of notices by local authorities) provides that-
“(1) ... subsections (2) to (5) below shall have effect in relation to any notice, order or other document required or authorised by or under any enactment to be given to or served on any person by or on behalf of a local authority or by an officer of a local authority.
(2) Any such document may be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
...”.
19 The respondent does not contend that the email of 2 September constituted service under section 233(2) of the 1972 Act. For his part, the appellant accepts that the use in section 233 of the permissive word “may” allows for other methods of service outside those specified in section 233(2), such as email service. It is therefore the common law which governs service in this case.
Electronic Communications Act 2000
20 Section 8 of the Electronic Communications Act 2000 empowers a Minister to modify legislation in order to authorise or facilitate the use of electronic communications. The power in section 8 has not been exercised in respect of the service of notices under the hackney carriage licensing regime. It has, however, been employed in respect of other local authority functions, including the fields of council tax, non-domestic rating and party walls. The appellant submits that these modifications “reflect the same approach in the CPR: that a serving party both notify, and receive assent from, the receiving party prior to using electronic communications as a method of service.” (paragraph 32 of Mr Nelson’s skeleton argument).
Case law
Lord Newborough v Jones
21 In Lord Newborough v Jones [1972 N No. 182], the Court of Appeal was required to construe the provisions of section 92 of the Agricultural Holdings Act 1948 regarding the service of a notice to quit an agricultural holding. Section 92 enabled such a notice to be “left at” the proper address of the person on whom the notice was to be served. The landlord pushed the envelope containing the notice under the door of the premises. It was said, however, to have ended up under the linoleum on the inside of the door, where it remained undiscovered by the tenant until the notice period had expired. The Court of Appeal held that service had been validly effected. The only “gloss” the Court was prepared to put on the language of section 92 was that, if served by leaving the notice at the proper address, “it must be left there in a proper way; that is to say, in a manner which a reasonable person, minded to bring the document to the attention of the person to whom the notice is addressed, would adopt.” (Russell LJ at 94F). The Court held that the landlord had acted reasonably.
Sun Alliance v Hayman
22 In Sun Alliance and another v Hayman [1975] 1 WLR 177, the Court of Appeal was concerned with the effect of notices under the Landlord and Tenant Act 1954. The landlords served a notice requiring the tenant to state within 2 months after “receiving” the notice that she would be giving up the property. The notice used a form that was not currently prescribed under the Act. The up-to-date form referred to a deadline after “receipt” of the notice. The Court held, by a majority, that the provisions of section 66 of the 1954 Act, which imported the provisions as to service in section 23 of the Landlord and Tenant Act 1927, were such that a notice served under the 1954 Act was both given and received when it was served in accordance with section 23 of the 1927 Act. Lord Salmon held that “According to the ordinary and natural use of English words, giving a notice means causing a notice to be received.” (p. 185C).
Chiswell v Griffon
23 Chiswell v Griffon Land and Estates Ltd [1975] 1 WLR 1181 concerned a tenant’s counter-notice under the 1954 Act. It was sent by post by the tenant’s solicitors but the trial judge found as a fact that it had been lost in the post and was never received by the landlord. It had not, therefore, been “duly served” for the purposes of section 29 of the Act. The Court held that the judge had been entitled to find the letter had been lost in the post. The presumption in section 26 of the Interpretation Act 1889 of delivery in the ordinary course of post had been rebutted on the evidence. The Court held that the position regarding the counter-notice would have been otherwise, if the tenant’s solicitors had sent the counter-notice by registered letter. Section 66, read with section 23 of the 1927 Act, provided that a notice “may be served ... by sending it through the post in a registered letter ...”. In other words, service would have been proved by sending the letter by registered post, irrespective of whether it was in fact received by the landlord (p. 1184B to 1186H; 1188H).
Goulandris v Knight
24 Goulandris v Knight [2018] EWCA Civ 237 concerned the validity of an appeal by an adjoining owner against a compensation award under the Party Wall etc Act 1996. The award decision was emailed to the adjoining owner on 2 September 2015 and received the same day. The contents were read by him the following day. The adjoining owner appealed on 17 September 2015, which was outside the 14 day period for appealing, assuming the award had been served on the adjoining owner on 2 or 3 September 2015. The Court of Appeal held that the relevant legislation was permissive as to means of serving notices. If, as the Court found, email was permissible then:
“7 It is, I think, common ground that the references to serve and served in section 10(15) and 10(17) respectively must have the same meaning so that the issue is whether the receipt by Mr Goulandris of the award in electronic form constituted service of it on him for the purposes of section 10(17) either on 2 September when the e-mail was actually received in his inbox or at least on 3 September when he read it together with the attachment.” (Patten LJ).
25 At paragraph 19, Patten LJ recorded the submission of counsel for the appellant that, unless the relevant legislation expressly excludes service by other means than those specified, a party is “entitled to rely on service which took place by any other means provided that it resulted in the relevant document coming to the attention of the receiving party. At common law service requires receipt of the document.” Patten then went on to repeat that there was “no dispute that Mr Goulandris did access the award on 3 September and read it, albeit in electronic form.”
26 Towards the end of his judgment, Patten LJ said this:
“36 Mr Weekes also referred to the practical difficulties which might exist were electronic service of documents to be permissible. Service of a hard copy by one of the means listed in section 15(1) promotes, he says, predictability and certainty in the process under a regime with short time limits. A party wall notice may, as mentioned earlier, include plans and drawings which are likely to be large and bulky and are not ideally suitable for electronic transmission. These are, of course, relevant considerations but in my view they are not decisive. Service by e-mail of documents in a pdf format does produce high quality copies of the relevant document, assuming of course that the originals were themselves legible. In one sense the introduction of electronic service as a result of the amendments introduced by the 2016 Order is a recognition of this. But in any event it is difficult to infer that Parliament intended under section 15 to create an exhaustive list of the possible methods of service so as to avoid difficulties inherent in service by e-mail or fax. If the serving party chooses to use a method of service outside section 15 then the burden is on him to establish receipt of the document in a legible form.”
UKI v Westminster CC
27 UKI (Kingsway) Ltd v Westminster City Council [2019] 1 WLR 104 concerned the effectiveness of service of a completion notice on an owner, as a result of which the property in question would be brought within the ratings list. The notice was handed to a receptionist, who was employed by the company managing the building for the owner. She scanned the notice and emailed a copy to the owner, by whom it was received. Lord Carnwath gave the judgment of the Supreme Court. The following paragraphs of his judgment are relevant for present purposes:
“14 The issue for this court, as identified in the agreed statement of facts and issues, is whether the completion notice was validly served on the date that it was received by UKI, in circumstances where: (i) it was not delivered directly to UKI by the council, but passed through the hands of the receptionist employed by Eco, who was not authorised for that purpose by either party; (ii) it was received by UKI in electronic rather than paper form.
Service - the authorities
15 It is common ground that, by virtue of the opening words of paragraph 8 of Schedule 4A to the Act, the three specific methods there set out do not exclude other methods of service available under the general law. There is no serious dispute as to what that entails. In Sun Alliance and London Assurance Co Ltd vHayman [1975] 1 WLR 177,185 (a case under the Landlord and Tenant Act1954), Lord Salmon said:
“According to the ordinary and natural use of English words, giving a notice means causing a notice to be received. Therefore, any requirement in a statute or a contract for the giving of a notice can be complied with only by causing the notice to be actually received unless the context or some statutory or contractual provision otherwise provides . . .
(No distinction is drawn in the cases between serving and giving a notice: see Kinch v Bullard [1999] 1 WLR 423, 426G.) To similar effect in Tadema HoldingsLtd v Ferguson (1999) 32 HLR 866, 873 Peter Gibson LJ said (in a case relating to service of a notice under the Housing Act 1988): Serve is an ordinary English word connoting the delivery of a document to a particular person.
16 Specific statutory provisions such as paragraph 8 are designed, not to exclude other methods, but rather to protect the server from the risk of non-delivery. As was said by Slade LJ in Galinski v McHugh (1988) 57 P&CR 359, 365, in relation to a similar service provision in the Landlord and Tenant Act 1927 (section23(1)):
“This is a subsection appearing in an Act which . . . contains a number of provisions requiring the giving of notice by one person to another and correspondingly entitling that other person to receive it. In our judgment, the object of its inclusion . . . is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, section 23(1) is intended to assist the person who is obliged to serve the notice, by offering him choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it. (Original emphasis.)
...
Discussion
35 The method of attempted service adopted by the council was far from ideal. As already noted, the purpose of specific provisions such as paragraph 8 is to provide reliable methods of service and to minimise the risk to the council of non-delivery. Given that, as is now accepted, the name and address of the owner could have been discovered by reasonable inquiry, it is not clear why this was not done. We have had no satisfactory explanation for this failure, nor indeed for the failure to take corrective action when the objection to service was raised. Nothing in this judgment should be taken as detracting from the good sense of the President’s observation (Valuation Tribunal, para 43): In practice, billing authorities would be well advised to secure the protection afforded by paragraph 8 and not serve outside those provisions unless confident that the circumstances are such that good service will be effected. However, the two legal issues on which the judges below disagreed are of some general importance and merit consideration by this court. Hence the grant of permission to appeal.
Indirect service
36 The difference between the Upper Tribunal and the Court of Appeal comes down to a narrow point. The Upper Tribunal thought that, since the notice issued by the council reached the hands of the intended recipient, it mattered not that the route was unorthodox. Gloster LJ thought that this approach failed to give effect to the concept of service on the owner by the authority (emphasis added). For my part I would accept that the means by which the notice arrives at its destination is not wholly immaterial. In itself the reference to the billing authority is simply to identify the body responsible for service; it says nothing about how that is to be done. The real issue, as I see it, adopting the words of Lord Salmon in the SunAlliance case [1975] 1 WLR 177, 185 is whether the authority caused the notice to be received by UKI. In other words there must be a sufficient causal connection between the authority’s actions and the receipt of the notice by the recipient.
37 Mr Kolinsky appeared implicitly to accept that analysis, but he submitted that the chain of causation was broken by the interposition of a third party in the form of the Eco receptionist. He challenged Mr Kokelaar’s suggestion that the receptionist was given implied authority to serve the notice, at least in any formal sense. To that extent I would agree with him; but it is unnecessary and unrealistic in my view to introduce concepts of agency or statutory delegation into this simple sequence of events. As the Deputy President accepted, the Eco receptionist, on receiving from the council officer a hand-delivered notice addressed to the “Owner”, did no more than would reasonably be expected of a responsible employee in that position: that is, pass on the notice to the person to whom it was addressed. It was the natural consequence of the councils actions.
38 Mr Kolinsky objected that the receptionist was not under the control of the council, as would have been for example a process server acting under contract. However, causation does not necessarily depend on control. Mr Kokelaar countered with the example of a notice correctly addressed, but mistakenly delivered to a neighbouring address and then passed on by the occupant to the intended recipient. Like him I see no reason why that should not be treated as effective service under ordinary principles of causation, even though the friendly neighbour was not under the control of either party.
...
42 A further argument against the Upper Tribunal’s approach was the potential uncertainty it leaves as to the date of service. As Mr Kolinsky points out, it may be important not only for both parties, but also for the valuation officer, to be able to identify the date of service with precision. Thus, in respect of a building which appears to have been completed, the date of service must be identified in the notice (paragraph 2(3)), and, subject to appeal, is treated as the completion day so triggering liability to rates. In respect of a building yet to be completed the proposed completion day must be not later than three months from and including the date of service: paragraph 2(2) of Schedule 4A.
43 The difficulty with this argument, in my view, is that some uncertainty in this respect is inherent in the legislation, in which neither the methods of service, nor the dates of service in different circumstances, are exhaustively defined. The simple answer for the authority may be that, where the date of service is critical, it is able to choose a statutory method which eliminates or minimises the risk of the notice being rendered invalid by failure to specify the correct date of service. If it chooses a non-statutory method it must bear that risk. The risk of prejudice to the owner is limited, since outside the statutory grounds service depends on actual receipt by the intended recipient, and the time for appeal is also related to receipt.
Electronic communication
44 In spite of the misgivings expressed by Lloyd LJ in the Hastie case [1990] 1 WLR 1575, it does not appear that the reasoning of the majority has been questioned in any subsequent cases, before or since the enactment of the 2000 Act. Notably it was applied in the PNC Telecom case [2003] BCC 202 notwithstanding the recognition that modifications had been made under the 2000 Act to other parts of the Companies Act 1985. Although those cases were concerned specifically with fax transmission of a copy of the relevant notice, no good reason has been suggested for distinguishing that from transmission by e-mail as in this case.
45 Given that this was the state of the general law immediately preceding the enactment of the 2000 Act, Parliament must be taken to have legislated against that background. Mr Kolinsky would need to point to some provision of that Act which expressly or impliedly restricts the previous law, or overall inconsistency sufficient to overcome the general presumption that Parliament does not intend to change the common law: see Bennion on Statutory Interpretation, 7th ed (2017), sections 25.6, 25.8. In my view he was unable to do so. Nor did he refer to any authority to support such a submission. It is not enough that the new law may overlap in certain respects with the general law. The purpose of the 2000 Act, as stated in its long title, was to make provision to facilitate the use of electronic communications. There is nothing to indicate an intention to cut down the existing law.
46 Against the background of the detailed scheme established by or under the 2000 Act, it may seem anomalous that the same result may be achieved in some cases by more informal means. However, the purpose of the Act and Orders made under it is to provide a clear and certain basis for the routine use of such methods by authorities. That purpose is not undermined by a conclusion that under general principles, and on the particular facts of this case, the notice was successfully served.”
Alam v SSHD
28 R (Alam) v Secretary of State for the Home Department R (Rana) v Secretary ofState for the Home Department [2020] EWCA Civ 1527 involved the giving of notice under immigration legislation. The claimants asserted that they had not been given the requisite notice concerning their leave in the UK. Floyd LJ said this:
“20 The issue which really divided the parties on this appeal was what amounts to the giving of notice. On the most generous approach (to the appellants) to this issue, the requirement for the giving of notice could mean that the person affected must become aware of the contents of the decision. On this approach the person affected must not only have the notice in his hands, but must also have opened the envelope or other medium by which it is delivered and read it. The difficulty with this approach is that those who do not trouble to open their mail, or collect recorded delivery items from the Post Office, or look at their emails, can effectively insulate themselves from being given notice...
21 Mr Biggs, who appeared for the appellants, supported this approach in his skeleton argument. In oral submissions, however, he did not support the good faith/bad faith distinction. In my judgment he was right not to do so, both because there is no basis in the language of the 2000 Order for such a distinction, and because the resultant approach is unworkable. Mr Biggs did recognise, however, that the court would be unlikely to accept that a person affected had not been given notice when he had had the envelope in his hand but declined to open it.
22 Mr Biggs also relied on statements in the authorities that in order for notice to be given it had to be “communicated” to the person affected. Thus, in R(Anufrijeva) v SSHD [2003] UKHL 36; [2004] 1 AC 604, the appellant asylum seeker had been refused asylum, and consequently lost her entitlement to state benefits, without any communication notifying her of the refusal of her asylum application. The majority of the House of Lords held that the decision to refuse her asylum had not taken effect when it was “recorded” as having been determined, as the SSHD contended. As Lord Steyn explained at paragraphs [26]:
“Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.”
23 He went on to explain the importance of this principle for the rule of law at [28]:
“This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system.”
24 Anufrijeva was, of course, not concerned with what amounts to the giving of effective notice, because there was no question of any attempt at all having been made to communicate the decision to the appellant. Lord Steyn did, however, at [29], go on to compare the European law approach which requires that the person affected must have the opportunity to make themselves acquainted with the decision:
“In European law the approach is possibly a little more formalistic but the thrust is the same. It has been held to be a "fundamental principle in the Community legal order … that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it":
25 It was in this context that Lord Steyn explained, at [30], that the underlying principle was one of fairness:
“Until the decision in Salem [which was overruled by this decision] it had never been suggested that an uncommunicated administrative decision can bind an individual. It is an astonishingly unjust proposition. In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law. In R v Commission for Racial Equality, Ex p Hillingdon London Borough Council [1982] AC 779, 787, Lord Diplock explained the position:
"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision."
Where decisions are published or notified to those concerned accountability of public authorities is achieved. Elementary fairness therefore supports a principle that a decision takes effect only upon communication.”
26 These passages do not support the notion that a communication will only be effective if the decision has been read and understood by the person affected. The European law approach described by Lord Steyn speaks in terms of the party affected being given the opportunity to make themselves acquainted with the decision. If Lord Steyn had been contemplating a requirement for the decision to have been read and understood by the person affected before it was communicated to the person affected, he could hardly have considered the broad thrust of the European law as being the same, when that law merely requires that persons affected should “have the opportunity to make themselves acquainted with” the decision.
27 Lord Millett, at [43], thought that reasonable steps to communicate with the person affected could be enough:
“I do not subscribe to the view that the failure to notify the appellant of the decision invalidated it, but I have come to the conclusion that it could not properly be recorded so as to deprive her of her right to income support until it was communicated to her; or at least until reasonable steps were taken to doso.” (emphasis added).
28 In UKI (Kingsway) Ltd v Westminster City Council [2018] UKSC 67; [2019] PTSR 128, Lord Carnwath cited with approval at [15] the observation of Lord Salmon in Sun Alliance and London assurance Group v Hayman (cited above): “According to the ordinary and natural use of English words, giving a notice means causing a notice to be received. Therefore, any requirement in a statute or a contract for the giving of a notice can be complied with only by causing the notice to be actually received—unless the context or some statutory or contractual provision otherwise provides…”
29 In my judgment, the giving of notice for the purposes of section 4(1) of the 1971 Act and the 2000 Order does not require that the intended recipient should have read and absorbed the contents of the notice in writing, merely that it be received. If it were not so, a failure to open an envelope containing the notice, for whatever reason, would mean that notice was not given. Similarly, I do not consider that the recipient must be made aware of the notice. Again, a recipient who allows mail to accumulate in a mailbox or on a hall table will not be aware of the notice. Proof of such facts should not enable the person to whom the mail is addressed to establish that the notice was not given, by being received.
30 Receipt, and thus the giving of notice, can plainly be effected by placing the notice in the hands of the person affected. So much is recognised by Article 8ZA(2)(a). In my judgment, however, receipt in the case of an individual is not so limited. Receipt of an email, for example, will be effected by the arrival of the email in the Inbox of the person affected. Likewise, documents arriving by post will normally be received if they arrive, addressed to the person affected at the dwelling where he or she is living, at least in the absence of positive evidence that mail which so arrives is intercepted. A document received at an address provided to the SSHD for correspondence is received by the applicant, even if he does not bother to take steps to collect it.”
D4 v SSHD
29 In R (D4) v Secretary of State for the Home Department [2022] QB 508, the majority of the Court of Appeal held that a regulation made under the British Nationality Act 1981, which purported to permit effective notice to be given to a person of an order depriving her of British citizenship, was ultra vires. The regulation would have enabled the Secretary of State to place the notice on the person’s file, held by the Home Office, where her whereabouts were unknown to the Secretary of State and her last known address was no longer used by her. Having considered Sun Alliance, UKI, Alam and Anufrijeva, Whipple LJ (with whom Baker LJ agreed) said:
“47 For the purposes of this appeal, I confine myself to noting the following relevant points extracted from these sources. First, the natural meaning of the word notice is that it is received. But that is not an invariable rule. The meaning of notice varies from case to case, and there will be exceptions to the idea that notice equates with receipt (Goodyear; Sun Alliance). Secondly, receipt does not mean full knowledge. At most, receipt means that the person receiving the notice should have an opportunity to inform him or herself about the contents of the notice (Alam). So even if a notice is received, in a legal sense, there is no certainty that the recipient will in fact become aware of the contents of the notice. Thirdly, it is possible for a contract or provision of statute to deem notice to have been given. Once notice is deemed to have occurred, it is possible that notice has not actually been given or received at all (Sun Alliance; UKI).
48 Mr Squires submitted that notice necessarily involves receipt at common law. That submission is not supported by these authorities and must be rejected. I would accept that receipt is in general the intended outcome of any process which involves giving notice, and that the purpose of giving notice is to allow the person to have the opportunity to know of the decision. But there are exceptions to that general position and notice can in some circumstances have been validly given, even in the absence of deeming provisions, and even where there has been no receipt in fact.”
Birmingham CC v Bravington
30 In Birmingham City Council v Bravington [2023] 3 WLR 267, the Council purported to serve notice on a tenant of its intention to seek possession on the basis of the tenant’s anti-social behaviour. The notice was handed to a woman at the premises in question, who identified herself as the tenant’s partner. The tenant claimed the notice had not been duly served. The Court of Appeal held that section 233 of the 1972 Act applied to the notice in question (which was served under section 83ZA of the Housing Act 1985). Newey LJ continued as follows:
33 If, as I have concluded thus far, section 233 of the 1972 Act applied in relation to the service of the Notice on Mr Bravington and the requirements of that provision were met, does it necessarily follow that the Notice was duly served? Or can Mr Bravington nonetheless dispute service on the basis that the document did not in fact reach him?
34 Mr Drabble argued that “At common law service requires receipt of the document” (see Goulandris v Knight [2018] 1 WLR 3345, para 19, per Patten LJ) and that, while section 233 of the 1972 Act prescribes certain mechanisms of service, it does not detract from the common law rule. Mr Manning, on the other hand, contended that proof that a document was left at the proper address in accordance with section 233 is conclusive and that it does not matter whether it actually came to the addressee’s attention.
...
38 In Chiswell v Griffon Land and Estates Ltd [1975] 1 WLR 1181, Megaw LJ said this at pp1188—1189 about section 23 of the 1927 Act:
“It is provided, as what I may call at any rate the primary means of effecting service, that it is to be done either by personal service or by leaving the notice at the last-known place of abode, or by sending it through the post in a registered letter, or . . . in a recorded delivery letter. If any of those methods are adopted, they being the primary methods laid down, and, in the event of dispute, it is proved that one of those methods has been adopted, then sufficient service is proved. Thus, if it is proved, in the event of dispute, that a notice was sent by recorded delivery, it does not matter that that recorded delivery letter may not have been received by the intended recipient. It does not matter, even if it were to be clearly established that it had gone astray in the post.”
39 In a passage quoted with approval by Lord Carnwath JSC in UKI(Kingsway) Ltd v Westminster City Council [2019] 1 WLR 104, para16, Slade LJ said of section 23 of the 1927 Act in Galinski v McHugh (1988) 57 P&CR 359, 365:
“the object of its inclusion in the 1927 Act . . . is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, section 23(1) is intended to assist the person who is obliged to serve the notice, by offering him choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it.”
...
41 In all the circumstances, I agree with Mr Manning that it is irrelevant when Mr Bravington became aware of the Notice. Like section 23 of the 1927 Act, section 233 of the 1972Act is, in my view, designed to allocate the risks of a failure of communication and to avoid disputes on issues of fact . . . where the true facts are likely to be unknown to the person giving the notice, and difficult for the court to ascertain . To adapt Slade LJs words, section 233 offers a local authority “choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive [the notice]”. It follows that, the Notice having been left at 9 Clunbury Road in such a way as to comply with section 233, it was duly served.”
The Pendrecht
31 The respondent seeks to rely on two authorities from the world of arbitration. In N.V. Stoomv Maats “De Maas” v Nippon Yusen Kaisha (“The Pendrecht”), [1980] Lloyd’s LR Vol. 2 56, Parker J had to consider the time at which an arbitration claim had been made. A telex making the claim had been sent to the respondent’s office on Friday, 7 January 1971, where it arrived after office hours and was not seen by those responsible until the following Monday morning. The deadline for the claim was either 8 or 9 January. Parker J considered the telex to be in effect the equivalent of a letter, a cable or a notice dropped through the letter box. There was no doubt that the letter would be effectively received if delivered by the postman on Saturday, notwithstanding the absence of anyone in the office on that day. The same was true of a cable and of dropping the notice through the letter box that day. He considered that:
“There can in principle be no reason why the telex should be in any different case, for all that the sender has done is to adopt a modern means of leaving the notice at the address. The telex must of course be received, that is to say, the machine must be left switched on, but so long as it is, when the office re-opens on Monday there will be waiting for attention four identical written notices, the letter, the cable, the notice dropped through the letter box and the telex” (p. 65).
Bernuth Lines v High Seas Shipping
32 In Bernuth Lines Limited v High Seas Shipping Limited [2005] EWHC 3020 (Comm), the High Court was faced with a submission that an arbitration purportedly commenced by email was not effectively served. The following passages from the judgment of Christopher Clarke J are relevant:
“26 The e−mails sent to info@bernuth.com were received at that address and not rejected. Jackson Parton's fax of 12th August 2005 indicated that they:
" .. would have been ignored by the clerical staff in receipt of such messages"
27 In his first Witness Statement Mr Hughes of Jackson Parton said that the persons who received the e−mails did not know what to do with them and ignored them. In his third witness statement he says that the e−mails were ignored as "spam". He states that the address receives hundreds of spam and unsolicited e−mails every day and that "the Customer Service Representative took the view that no serious legal matter would be sent to the Applicant using that address " and "that the email was not serious and that serious legal correspondence would go through appropriate channels". He adds "One has in mind the frequency with which junk e−mail is received containing apparently legitimate legal email correspondence which is in fact spurious." It is apparent from that evidence that the representative in question saw the e−mail of 5th May and consciously decided to ignore it. Presumably something similar happened with the others.
...
29 That is not to say that clicking on the "send" icon automatically amounts to good service. The e−mail must, of course, be despatched to what is, in fact, the e−mail address of the intended recipient. It must not be rejected by the system. If the sender does not require confirmation of receipt he may not be able to show that receipt has occurred. There may be circumstances where, for instance, there are several e−mail addresses for a number of different divisions of the same company, possibly in different countries, where despatch to a particular e−mail address is not effective service.
30 But in the present case none of those difficulties arise. The e−mail of 5th May 2005 and, so it would appear, all subsequent e−mails, were received at an e−mail address that was held out to the world as the, and so far as the evidence shows, the only e−mail address of Bernuth. Someone looked at the e−mails on receipt and, apparently, decided that they could be ignored, without making any contact with the sender. The position is, to my mind, no different to the receipt at a company's office of a letter or telex which, for whatever reason, someone at the company decides to discard. In both cases service has effectively been made, and the document received will, in the first instance, be dealt with by a clerical officer.”
The case for the appellant
33 The appellant no longer seeks to rely upon Question 1 of the questions posed by the Magistrates’ Court at the appellant’s request. Before that Court, the appellant argued that the respondent’s email of 2 September 2024 was not good service because the respondent had failed formally to confirm to the appellant that he was willing to accept service of the notice of reasons etc by email. The appellant’s case then was that this requirement exists in the case of the Civil Procedure Rules and ought to be implied in the statutory provisions concerning the licensing of private hire and hackney carriage drivers. Further or in the alternative, the appellant contended that it would be procedurally unfair to do otherwise.
34 The appellant submits that the reliance placed by the Magistrates’ Court on the findings of the Supreme Court in UKI, as to the causal connection between the handing of the notice to the building receptionist and the receipt of the notice in electronic form by the company, was in effect beside the point. What matters in the present case, the appellant says, is the issue of receipt. That was not a contentious matter in UKI, since it was accepted the company had received the notice, via the receptionist.
35 In the present case, the appellant says that he has never accepted that he “received” the notice on 2 September. Instead his position is that the notice was received on or around 21 October 2024. In this regard, the appellant points to the evidence he gave to the Magistrates’ Court, as set out at paragraphs 52 to 57 of the Case document produced by that Court for the purpose of these proceedings. There, the appellant was recorded as saying he was informed at the hearing that his licence was revoked; it was not explained at the meeting how the respondent’s notice would be sent to him and he believed the decision and reasons would be sent to him by letter. The appellant’s evidence was that the email of 2 September “went to his spam email folder. The Appellant stated he did not see this email until 19th, 20th or 21st October 2024 and upon seeing the email he acted immediately, contacted a solicitor and issued an appeal.”
36 The appellant says it was for the respondent to show that the appellant was aware of the notice emailed to him on 2 September or, in the light of the judgment of Whipple LJ in D4, that the appellant had the opportunity to be aware of the decision. Addressing the Magistrates’ Court’s reasons (paragraph 1 above), the appellant submits that the Court’s reference to the 2000 Act does not assist the respondent. If the power in section 8 to modify the relevant legislation had been exercised, the modifications would have included a requirement for the respondent to notify and seek assent from the receiving party.
37 The respondent had to demonstrate to the Magistrates’ Court that the notice came to the attention of the appellant. The Court’s decision, however, contains no such finding. Even if there was no requirement to show “actual receipt”, applying paragraph 47 of D4, the entering of the email into the appellant’s spam folder gave the appellant no opportunity to inform himself about the contents of the notice. Accordingly, what happened cannot be categorised as “notice”. The appellant cannot be expected to check his spam folder for emails revoking his licence when the respondent had not indicated how the notice would be served.
38 The appellant asks this Court to answer Question 2 in the affirmative. The Magistrates’ Court erred in finding that service had been effective without first making a determination that the appellant had received the notice on 2 September 2024. The approach was contrary to the common law rules on service. The answer to Question 3 should, the appellant says, be that service occurred on 22 October 2024.
Discussion
39 The respondent submits that the appellant’s position in these proceedings has radically changed, both compared with his position at the appeal hearing before the Magistrates and as regards his earlier position in respect of the appeal by way of case stated to this Court. In neither instance did the appellant contend that the question whether the email went to his spam folder was of any significance. This can be seen from the appellant’s representations (aka skeleton argument) dated 12 May 2025, made pursuant to paragraph 77(2) of the Magistrates’ Court Rules 1981, following the appeal by way of case stated. The representations were submitted for the purpose of persuading the Magistrates’ Court that the appeal to the High Court was not “frivolous”, such that they may refuse to state the case: section 111 of the Magistrates’ Courts Act 1980. So far as the present case is concerned, section 111 provides that a party to the proceedings or a person aggrieved by an order etc of the court may question the order or other proceeding on the ground that it is wrong in law or in excess of jurisdiction, by applying to the court to state a case for the opinion of the High Court on the question of law or jurisdiction. There is no reference in the appellant’s representations to what is now a central aspect of his case before this Court; namely, that service was not effected because the email went into the appellant’s spam folder.
40 The respondent submits that the High Court is being inappropriately invited by the appellant to step into the shoes of the Magistrates’ Court and make a finding on a contentious issue, as to whether the email went into the spam folder. The issue is, the respondent says, outside the factual scope of the present appeal because the Magistrates clearly did not make a finding on the “spam” assertion; the appellant did not mention this in his representations; and the assertion cannot be treated as an objective or found fact on the evidence before the High Court.
41 Mr Nelson says that the respondent bore the burden of proving service. The respondent urged the Magistrates’ Court to apply the causal connection test in AKI, which it has now abandoned. The respondent accordingly did not encourage the Magistrates to make a finding regarding the issue of the spam folder. By contrast, the appellant’s skeleton argument for the Magistrates’ Court hearing referred at paragraph 8 to the email of 2 September entering the appellant’s spam folder. At paragraph 24, the skeleton submitted that the fact the email went into spam was entirely out of the appellant’s control: “Had the Council taken reasonable steps to inform him that this would be the method of giving notice, then perhaps he would have taken measures to check that folder.” Since, however, the appellant was “unaware that the chosen method was to email the decision, Mr Berow was unable to confirm its existence.”
42 I fully accept that the respondent bore the burden of proving that service was effected. Its case before the Magistrates’ Court was that this burden had been discharged because the sending of the notice by email was, in the circumstances, effective service. That was so, whether or not the email had been sorted into the appellant’s spam folder. The appellant’s case was that sending the notice by email was not good service. That was also so, whether or not the email had gone into the appellant’s spam folder. It was, in short, neither party’s position that the issue of whether the email went into spam was material to the outcome of the appeal before the Magistrates’ Court. That is still the respondent’s position before this Court. It is the appellant’s position which has materially changed. Paragraph 24 of the appellant’s skeleton argument was doing no more than illustrate a particular problematic consequence of using email. The skeleton argument and indeed the appellant’s case before the Magistrates were that, having regard to the CPR and principles of procedural fairness, the use of email per se was not permitted in the circumstances of this case.
43 It is therefore entirely unsurprising that the Magistrates’ Court did not make a finding of fact as to whether the email had entered the appellant’s spam folder on 2 September 2024. Since it was not the appellant’s case that anything turned on the issue, the respondent had no need to cross-examine the appellant on it. The Case produced by the Magistrates’ Court for the purposes of the High Court merely recorded the appellant’s evidence, including that the email went into spam.
44 The respondent argues that it would be inappropriate for this Court to make a finding of fact, not made by the Magistrates’ Court, on the destination within the appellant’s email system of the email sent on 2 September. The allegation that it went into the spam folder is highly contentious. There are significant reasons to doubt that the appellant is to be believed on this issue. In oral submissions, Mr Nelson asserted (for the first time) that previous decisions of the respondent on licencing matters regarding the appellant had been sent by letter, where the decisions involved the imposition of penalties by way of penalty points, as opposed to mere warnings. Mr Nelson referred to four such letters, making much of what he categorised as a trend or pattern of communications, which contrasted with what he sought to categorise as the unexpected decision to communicate the reasons for revocation by means of email. In this regard, I also note the evidence of the appellant as recorded at paragraph 54 of the Case, that he “believed the decision and reasons would be sent to him by letter.”
45 In fact, of the “penalty points” letters relied on by Mr Nelson, only that dated 20 February 2020 was posted, as well as being sent to the appellant by email. The letters of 17 July 2020, 23rd June 2021. 21st January 2022 and 11th June 2024, were all sent by the respondent to the appellant only by email. This information came from Mr Grant’s instructing solicitor and is not disputed by Mr Nelson. Mr Grant told me on instruction (and I have no reason to doubt) that, following Covid, the respondent has adopted a practice of sending such communications by email. Mr Nelson did not seek to dissent from this information.
46 It is against this background that the spam issue requires to be considered. Since there is no evidence to indicate that the three “penalty points” letters, sent only by email, went into the appellant’s spam folder, it is difficult to see why the email of 2 September 2024 should have done so. This difficulty is compounded by the following considerations. The email was successfully copied to and received by the appellant’s solicitor, Mr Ahmed. The letter of 24 October 2024 from LS Licensing Lawyers to the respondent states (apparently on instruction from the appellant) that the email of 2 September “was never seen or read” by the appellant, as “His system apparently deletes such spam after a period of one month”. That deletion would have occurred around 2 October 2024; yet the appellant responded on 21 October to the original email chain that began with the email of 2 September, indicating that it had not been deleted. If deletion had occurred before the appellant claims to have seen the email, it is difficult to understand how the appellant could ever have been aware that the email had entered his spam folder. The appellant was, furthermore, emailed by Ms Neale on 10 October 2024 that his licence had been finally revoked (it being 21 days since service of the decision). There is no assertion that this email was treated by the system as spam; yet the appellant was still driving for hire on 15 October 2024, which suggests he either did not read or else simply ignored the email of 10 October. This suggests in turn that the appellant did the same with the email of 2 September.
47 Given all this, it would be wholly inappropriate for this Court to make a finding of fact in favour of the appellant on the “spam” issue. If I had to make any finding on the issue, for the reasons set out above, I would find on balance that the appellant’s assertion is simply not credible. I conclude, however, that any finding of fact on this issue is outwith the scope of the case-stated appeal. The appellant may not, therefore, advance a case that the email was not received because it went to his spam folder. Given the reliance now placed by the appellant on the issue, this means the appellant cannot make good his case to have Question 2 answered in the affirmative; nor his case that the answer to Question 3 must be a date in October 2024.
48 If I am wrong about this, I find that the respondent proved the notice was effectively served on 2 September 2024, even assuming the email did enter the appellant’s spam folder on that date. My reasons are as follows.
49 The case law shows that, in basic terms, service at common law is available where, as is usually the case, the statutory regime concerned does not provide an exhaustive set of means of service. Where, as in the present case, a person chooses to rely on the common law, that person bears the burden of proving that service was effected. This means they must show that the notice or other thing required to be served was received by the person on whom service is to be effected. The issue in the present case is what is meant by “received.”
50 A statutory means of service exists to “protect the server from risk of non-delivery" and “eliminates or minimises the risk of the notice being rendered invalid” (UKI, paragraphs 16 and 43; paragraph 27 above). The most striking instance is given in Chiswell, where the effect of the statutory provision was that sending a notice by registered post constituted valid service even if the intended recipient never received the notice; whereas using the ordinary mail ran the risk (which materialised in that case) of the letter getting lost in the post and thus not being delivered or received.
51 A statutory means of service is, however, subject to ordinary principles of legislative interpretation. As a result, the provisions in question may require to be construed in a way that has regard to concepts such as reasonableness. An example is LordNewborough, where the Court construed the power to effect service by “leaving” a notice “at a proper address” as requiring it to be left “in a manner which a reasonable person ... would adopt” (paragraph 94F; paragraph 21 above).
52 Mr Nelson criticised the respondent for seeking to derive principles applicable to common law service from cases in which statutory means of service were in issue. Lord Newborough, however, shows that there may in fact be common threads. One also sees this in Goulandris, where Patten LJ addressed the acceptability of email service by reference to the quality of the pdf documents that could be transmitted electronically (Goulandris, paragraph 26; paragraph 26 above).
53 The immigration cases of Alam and D4 did not turn on any distinction between statutory and common law service. On the contrary, D4 was about whether a statutory provision regarding service to the Home Office file of an individual was lawful. These cases (and the related case of Anufrijeva) were concerned with the basic principle of fairness, which includes considerations of practicality and reasonableness, viewed from the perspectives of the sender and the intended recipient of a notice. Alam is relevant for Floyd LJ’s emphasis on giving the intended recipient the opportunity of making themselves acquainted with the contents of the notice; a concept found in European law, as explained in Anufrijeva, but which must equally in my view inform the understanding of what is required by our common law. Paragraphs 29 and 30 of Floyd LJ’s judgment delineate the parameters of what such an opportunity involves. It is not to be equated with actually making the person aware of what is inside an envelope or an email’s inbox. Rather, as Lord Millett observed in Anufrijeva, we are concerned with what, in all the circumstances, it is reasonable to expect of the sender and the intended recipient of the notice (paragraph 28 above).
54 This emphasis on opportunity is repeated in D4. As regards the last sentence of paragraph 48 of Whipple LJ’s judgment (paragraph 29 above), I note that it is not the present respondent’s case that there was “no receipt in fact” on the part of the appellant; rather, that the email of 2 September 2024 was received, whether or not it was actually read by the appellant at that time.
55 That service by email is permissible at common law is now beyond doubt, notwithstanding Parliament’s decision to make specific provision for electronic service in the 2000 Act: paragraphs 44 to 46 of UKI; paragraph 27 above). Importantly, Mr Nelson, in his oral submissions, accepted that an email may, in certain situations, be validly served at common law, where it is sorted into the recipient’s spam folder by the recipient’s email service. The issue becomes therefore whether, in all the circumstances of the present case, service was effected, assuming that the email of 2 September 2024 went into the appellant’s spam file.
56 In the light of Goulandris and UKI, I do not accept that the arbitration cases relied on by the respondent are out of line with Court of Appeal and Supreme Court authority. On the contrary, their acceptance of electronic means of service is in accord with that authority. Bernuth is the closest a decided case has come to the asserted facts of the present case, in that it involved emails being treated by human recipients as spam. Christopher Clarke J held that this did not mean the emails were not validly served. In the present case, the assumption on which this part of my judgment proceeds is that no human being did the sorting; the appellant’s email provider did it of its own accord. Mr Nelson submits this is a crucial difference.
57 I disagree. Like an inbox, a spam box or folder is a place within the appellant’s email system where incoming emails may be placed by the email operating system. A spam folder may be accessed by clicking on it. The email of 2 September was recorded by Ms Neale’s email system as having been received by the appellant’s, as opposed to being rejected by the latter. There had been a successful electronic “handshake”. Ms Neale had no way of knowing whether the email had gone into any particular folder or box in the appellant’s system. Importantly, the previous pattern of communication between the respondent and the appellant regarding licensing issues had been by email: paragraphs 44 to 46 above. Given this and the fact that the appellant knew at the hearing of the sub-committee that his licence was being revoked, any reasonable person in his position would have kept an eye on both his email inbox and the spam box or folder, in order to make themselves aware of the notice. In the circumstances of the present case, the appellant’s failure to do so is akin to the failure of Floyd LJ’s hypothetical individual in paragraph 29 of the judgment in Alam to examine the mail accumulating on the hall table (paragraph 28 above). In so finding, I am not (contrary to Mr Nelson’s submission) reversing the burden of proof. The respondent proved what it needed to prove, in the circumstances of this case. That did not involve having to prove the appellant was actually aware of the contents of the notice Ms Neale had sent him.
58 Accordingly, in the alternative that the “spam” issue is before this Court, the answer to Question 2 is, no. The answer to Question 3 is, in either event, the same; namely, 2 September 2024. The appeal is dismissed.