The European Union (Represented By the European Investment Bank) & Anor v The Syrian Arab Republic

This is an application by the European Union for a declaration that all documents required to be served to institute this claim have been validly served on Syria, the defendant, pursuant to CPR 6.44 and section 12(1) of the State Immunity Act 1978, by e-mail.

The European Union, represented by The European Investment Bank, has a claim against the Syrian Arab Republic, for moneys due under six loan agreements entered into between September 2003 and December 2008. The European Union has indemnified the European Investment Bank for its losses on the loan agreements and, hence, seeks to recover the sums it has paid on the subrogated basis from the government of Syria.

The question of service on a foreign government is dealt with by section 12(1) of the State Immunity Act 1978, which provides:

"Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or other document is received at the Ministry."

This is a mandatory requirement as to the mode of service. What is required is transmission of the relevant documents through the Foreign and Commonwealth Office, to the Ministry of Foreign Affairs of the State.

It has been submitted that the meaning of "transmission" is indicated, though in a different context, by the decision of the Court of Appeal in Anson v Trump [1998] 1 WLR 1404. That case concerned the question whether a defence had been served by fax by a particular time. The question, in terms of a rule in the CPR, which referred to service being effected by transmission, was, what was the meaning of "transmission" in that context?

Otton LJ at page 1411, letter F said as follows:

"Transmission must be given a meaning which is consonant with modern communication technology and commercial practice. I would hold that 'transmission' means the process from the moment that the document is despatched by the sender to a time when the complete document has been received into the recipient's faxed equipment. This may be a matter of seconds or even nano-seconds, it may be somewhat longer if the recipient's fax machine is busy or the document is longer. The fact that it may remain in the fax memory before being printed or read is to my mind irrelevant. Consequently I would respectfully differ from the judge and hold in this case that, in the absence of evidence to the contrary and assuming that the clock on the transmitter's fax machine was accurately set, the defence which consisted of two pages and probably a covering sheet was transmitted and served at about 9.42 am on 22 November."

Based on that decision and reasoning, it has been submitted in the present case that, for the purposes of section 12 of the State Immunity Act, transmission is achieved by e-mail when the e-mail arrives in the electronic depository of the recipient. I accept that submission. The question, therefore, for the court is whether, this being a jurisdictional matter, the claimant, the European Union, has the better of the argument, or much the better of the argument, that the e-mail containing the documents in question was received in the electronic depository of the relevant ministry of the government of Syria on 22nd September of last year.

There is evidence before the court concerning that matter. The e-mail address to which the documents were sent is published on the website of the relevant ministry. That e-mail address is info@mofaex.gov.sy.

On 22nd September 2017, the Foreign Office sent e-mails to that address. The e-mails had attached the relevant documents. An e-mail from the Foreign Office states:

"The four e-mails were sent today, 22nd September 2017, between 14.44 and 14.47 and at the time of this reply, 15.28, we have not received any messages back to say that the e-mails could not be delivered."

On 27th September, the Foreign Office sent a further communication, saying that they had received no acknowledgement or response from the Ministry of Foreign Affairs to Syria to the four e-mails that were sent to them on Friday, 22nd September, and then they added, "We also did not receive any message undeliverable notifications for the above four e-mails".

That evidence is, therefore, evidence that the e-mails had been sent and received in the electronic depository or server of the relevant ministry of the government of Syria. That is because if the e-mails had not been received, it is very likely that a message undeliverable notification would have been received.

Greater force is given to that observation by the circumstance that when Allen & Overy, the solicitors for the European Union, sent further evidence in this case to the e-mail address in question, a delivery failure notification message was received. On 30th January, reference was first made to the e-mail address and it was said that the e-mail sent to that address could not be delivered. "The problem appears to be recipient server unavailable or busy. Additional information follows. Mail box full." This condition occurred after 22 attempts to deliver over a period of 32 hours.

The fact that such a notification was received to that e-mail strongly suggests that the absence of any such notification to the e-mails sent on the 22nd indicates that those e-mails, on the 22nd, had indeed been received at or on the Ministry's server.

I am, therefore, satisfied to the relevant standard that, in the terms of section 12 of the State Immunity Act, the documents required to be served in this case were transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the state of Syria, by e-mail, on 22nd September of last year.

Accordingly, the declaration sought can be granted.