Maughan v Wilmot (Rev 1)

On 15 April 2014 I gave a judgment in this case (Maughan v Wilmot [2014] EWHC 1288 (Fam)) which sets out much of the background, which I need not repeat here. I recorded that the husband had been validly served by email, as a previous order made by Ryder J on 27 February 2013 had provided. I also recorded that the husband had made his own application and had deluged the wife and the court with much correspondence sent by email. The husband’s application was served by email and in its first form gave as the address for service a solicitor’s office in London. In its second form that address was struck out and the husband gave no address for service. Therefore the husband accepted that the only way in which documents relating to his application could be served on him was by email.

The husband is English and works as a pilot for Turkish Airlines. The "seat" of his work is Istanbul but he has no home there – he gives his address in that city as "working from Bakirkoy, Istanbul". Bakirkoy is a district in the European side of Istanbul. After this judgment was distributed in draft Mr Bowen QC informed me that the husband’s address in Bakirkoy is the Titanic Port Hotel. The nature of his work means he is highly transient and mobile. He has the use and ownership of two dwellings in Somerset and one in the Isle of Man. He spends leisure time here and elsewhere.

The order of 27 February 2013 was a final order which fixed the husband’s liability to pay child maintenance. It provided that any document shall be deemed to be served validly on the husband if it is sent to him by email, and two email addresses were given. It did not say anything about service out of the jurisdiction. Implicitly it governed service on the husband whether he was in or out of the jurisdiction.

The judgment given on that day recorded that the husband was present at the hearing, although he had left, feeling unwell, before judgment was given. The order records at para 2 that the husband’s application for an adjournment made in the face of the court was refused. The suggestion that the order is invalid because it provided for service of documents by email on the husband is frankly ridiculous. The judgment, later reflected in the order, was transcribed, and a copy of the judgment was obtained by the husband. He knew exactly what it entailed. He even used a copy of it, annotated, as Exhibit B to his “Notice” filed with the court (and sent by email) dated 16 March 2014 (which bears his digital signature). It did not need later service on him to acquire its validity, or, for that matter, for him to know what the court had ordered.

The husband sought to appeal the order but permission was refused by Lloyd LJ on 25 July 2013. On that occasion he was represented by counsel. His grounds of appeal did not include any complaint about the validity of the order permitting email service on him. There have been numerous hearings since then including the one before me on 15 April 2014 to which I have referred. On 8 July 2015 the husband was represented by Mr Bowen QC. On that occasion he asserted, for the first time, that the original order of 27 February 2013, and all subsequent orders which were served by email, are null and void and must be set aside because there is no power to serve a person out of the jurisdiction by email where he is present in Turkey, a country which is a party to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("The Hague Service Convention"). These submissions were repeated on 29 September 2015 when I fixed this hearing to determine an application by the husband, which I treat him as having made, to set aside the original order of 27 February 2013 and all subsequent orders.

Since the original order large sums of child maintenance have been paid, but by no means the full amount. Large amounts of arrears have arisen and these had been enforced by means of the receivership which I ordered. Large amounts of costs have been incurred and again substantial sums have been enforced against the husband. Mr Bowen QC says all this has been achieved illegitimately as the orders are null and void. In his oral submissions he said that all the money must be repaid and the wife should seek recompense from her solicitors who will be fully insured.

An order of any court is binding until it is set aside or varied: R (on the application of Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700, [2006] 1 WLR 2870, at [22]; Serious Organised Crime Agency v O'Docherty (also known as Mark Eric Gibbons) and another [2013] EWCA Civ 518 at [69]. An order is binding even if there were doubt as to the court's jurisdiction to make it: Chuck v Cremer (1846)Cooper temp. Cott. 205;Hadkinson v Hadkinson [1952] P 285 at 288; Isaacs v Robertson [1985] AC 97 at 101-103; M v Home Office [1993] UKHL 5, [1994] 1 AC 377 at 423; KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at [22].

Under FPR 4.1(6) and section 31F(6) of the Matrimonial and Family Proceedings Act 1984, as amended, the court has power to vary, revoke, suspend or rescind an order made by it. This is a discretionary power. Even if there is shown to have been doubt as to the jurisdiction of the court to make an order it does not necessarily follow that the discretion will always be exercised to set the order aside. The power will be exercised in accordance with elementary principles of justice. If a party has promptly challenged an order on a certain ground and has always protested its validity then the power to set aside would very likely be exercised in his favour. But if a party has acquiesced in the validity of an order, or has delayed in challenging it, or has submitted to and accepted the jurisdiction of the court, or has otherwise behaved unconscionably, then it is improbable that the discretion would be exercised in his favour.

This is just such a case. Over two years elapsed before the husband took this point, although he took many other meritless points about the validity of the order (for example, that the order did not precisely reflect the terms of the judgment). All of these were dismissed by Lloyd LJ in the Court of Appeal. In that period there had been considerable litigation between the parties, during the course of which the husband himself has, as I have stated, deluged both the wife and the court with emails, and had made his own applications giving an address in England and email addresses for service. At the hearing on 21 December 2015 nothing was placed before me which showed that the husband had raised any protest against the email service provision of the order. On that occasion I directed that further written submissions on certain discrete points should be filed by 6 January 2016 as I intended to write this judgment on 7 January. Mr Swift compiled; Mr Bowen QC did not, claiming that the matter had been too complicated. I therefore directed on Saturday 9 January that in circumstances where this judgment had been largely written I would accept further submissions from Mr Bowen not exceeding 4 pages. That was sent to counsel at 16:47. However on that day at 15:10 Mr Bowen had filed with my clerk a 25 page further submission. Following receipt of my direction he filed on Sunday 10 January at 18:15 a condensed version of 4 pages. I have read the latter but not the former. The condensed submission asserts that the husband has indeed protested about email service and states that a bundle of letters and emails will be filed on Monday 11 January. This is unacceptable. I have not read any further material. Even if the husband has protested about email service of orders made in his absence, such protests ring very hollow indeed given his extensive use of that medium in this litigation. My previous judgment shows how he was fully aware of the applications that were then before the court.

In my judgment the husband by his conduct has forfeited the right to advance any argument concerning the validity of the orders which have been in place for such a long time. I decline to exercise my discretion in his favour.

However, I will nonetheless express my opinion on the argument advanced by Mr Bowen QC as this may well be relevant in other cases. Moreover, it may be that another court finds my primary decision in relation to my discretion to be wrong and so it is necessary for me to give my reasons as to why I reject the basic argument of Mr Bowen QC.

The law reports contain many cases about service and an aura of mystery and complexity envelopes the subject. However, recently in Abela & Ors v Baadarani [2013] UKSC 44 (26 June 2013), [2013] 4 All ER 119, [2013] 1 WLR 2043, the Supreme Court has addressed the subject with arresting simplicity and has exploded many of the myths surrounding it. At [37] Lord Clarke reminded us all of a simple truth namely that the whole (and sole) purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant's case. Therefore when granting permission to serve originating process out of the jurisdiction in a civil claim (which permission is not required in a family claim – see FPR 6.41) the court has power under CPR 6.37(5)(b)(i) to direct that the service may be effected otherwise than in accordance with the law of the foreign country. Mr Bowen QC accepted that such a direction would extend to allowing service by email. However at [34] Lord Clarke made it clear that that case was not one where the Hague Service Convention applied or in which there is any bilateral service convention or treaty between the United Kingdom and Lebanon; he left that situation open. Mr Bowen QC argues before me that that is the very situation here.

Mr Bowen QC's argument is as follows:

I do not agree with this argument. In order to understand my reasoning it is necessary to go back to basics. What follows does not dilute my primary conclusion that the husband, having been present in court and later obtaining a copy of the judgment, simply cannot impugn the validity of the final order for child maintenance made on 27 February 2013.

According to its first recital the objective of the 1965 Hague Service Convention was "to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time". It entered into force here on 10 February 1969 and in Turkey on 28 April 1972. In terms of information and communication technology 1965 is a foreign country where they did things very differently. Email and fax did not exist. A US-wide telex service did not start operating until 1966. It did not become common in Europe until the 1970s. Telegrams had been ubiquitous for decades, but these still required physical delivery by the postman.

Therefore if someone was resident abroad in 1965 then in order to be notified of a claim a communication had to be delivered physically to him.

The 1965 Hague Service Convention sought to simplify and expedite service. Each state party established a Central Authority, to which the documents for service would be sent. Article 5 provides:

The premise of the Hague Service Convention was traditional and simple. The person to be served would be present in the "state addressed" and he would have physically delivered to him there the document notifying him of the claim. That premise was not altered by the arrival of the fax. A fax presupposes that there is a receiving console in the "state addressed". Even the arrival of email did not really change the scenario as in those early days emails would be delivered to substantial fixed workstations situated in the "state addressed".

This traditional scenario needs to be reconsidered with the advent of portable computing devices such as laptops, and, more recently, smartphones and tablets. The scenario was already unsteady when you consider that for years now a holder of an email account has been able to access his emails on virtually any computer, for example on a friend's or in an internet café, and is not restricted to one computer in his home or office. In the modern age, where people check their emails all the time on their portable devices, it is inapt to be talking about a document being served and received in any particular place at any particular time. It is "received" from the server wherever the recipient is, whenever he accesses his inbox. It is important to remember that the email reposes on the server and is merely viewed on the device, although it and its attachments can of course be downloaded. Downloading does not of course remove the email from the server. It stays there until it is deleted.

If an email attaching a claim form is sent to a person on a Monday and in that week he travels to five countries on successive days and on each of those days he accesses his inbox, then he can be taken to have "received" it in each of those countries on each day. If one of those countries is England then the claim form has been served in this jurisdiction, and if service by email has been authorised under FPR 6.19 and PD6A paras 4.1 to 4.6, then there will unquestionably have been valid service.

In this case the husband is an airline pilot who travels to this country regularly for personal and occasionally for work-related reasons. He is computer literate and adept at dealing with emails. Indeed they are his preferred form of communication. He has even created his own digital signature. I am sure that when here he will have accessed his emails. It is absurd to think otherwise. But I have not heard evidence about this and do not make a formal finding of fact to this effect. I do not need to do so given my other decisions on Mr Bowen's case.

I now consider the position if I am wrong in this view of the personal portability and continuous receipt of emails by their addressee. This position also arises if it is the case that following the sending of an email of service the addressee has either not set foot in this jurisdiction or, if he has, has not accessed his email inbox while in it.

In Bayat Telephone Systems International Inc & Ors v Lord Michael Cecil & Ors [2011] EWCA Civ 135 [2011] 1 WLR 3086 one of the questions was whether an order should have been made permitting service out of the jurisdiction by alternative (electronic) means on international businessmen who had a transient lifestyle and homes in several countries. One of those places was the USA, a Hague Service Convention country. Hamblen J declined to set aside the order permitting service by such means and his decision was appealed.

At [62] – [64] Stanley Burnton LJ cited Cookney v Anderson (1863) 1 De G J & S 365 (1863) 46 ER 146, George Monro Limited vAmerican Cyanamid and Chemical Corporation [1944] 1 KB 432, Afro Continental Nigeria v Meridian Shipping Co SA (The Vrontados) [1982] 2 Lloyd's Rep 241, and Molins Plc. v G.D. S.p.A. [2000] 1 WLR 1741. These all assert the familiar trope, later described by Lord Sumption as "muscular" in Abela, that service out is an exorbitant jurisdiction - an exercise of sovereignty within the country in which service is effected.

Stanley Burnton LJ therefore concluded at [65] – [70]:

In my judgment these views cannot survive the decision of the Supreme Court in Abela. The decision is clear. The purpose of service, indeed the only purpose of service, is to inform the defendant of the contents of the claim form and the nature of the claimant's case. That is what the first recital to the Hague Service Convention says. Service is not “more than this”. To my mind the judgment of Lord Sumption really sums up why the old views are now to be regarded as unworldly in this data age. He stated at [53]:

In my judgment the key features of the modern age of international mobility and the use of information and communication technology require a fresh view of the old tropes about service out of the jurisdiction. FPR 6.1 applies to all the rules about service whether in or out of the jurisdiction. It provides that

In my judgment FPR 6.1(b) certainly permits the court to dis-apply the terms of Chapter 4 of Part 6 and to authorise email service on a defendant out of the jurisdiction, if there is good reason to do so. The existence of this power is obvious to me in family proceedings where there is no requirement to obtain permission to serve out. It would be bizarre if the position was more restrictive in family proceedings, where there is no such requirement, than in civil proceedings, where there is. Plainly, if the other country is a Hague Service Convention country (or if there exists a bilateral treaty about service with that country) the court would want to know why the treaty route was not being followed. The normal answer would I expect be delay or inability to pin down the defendant's location. Those would be good reasons. I note that in Bayat at [68] Stanley Burnton LJ accepted that there were some special circumstances where service by alternative means would be appropriate even where the Hague Service Convention was in play. So the pass has been sold. In my opinion the effect of Lord Sumption’s judgment in Abela (with which Lords Neuberger, Reed and Carnwath agreed) is merely to lower the bar somewhat.

In my judgment the husband has not shown that Ryder J was wrong to authorise email service on the husband on the facts of this case. Indeed on the facts I would say that he was plainly right. The fact that he did not appear to enquire why the use of the Hague Service Convention was not practicable is at its highest a procedural lapse and certainly not any kind of fatal defect.

If I am wrong in this analysis I would say finally that I am perfectly satisfied on the facts of this case that, for the reasons given above, the husband has accepted voluntarily delivery to him of all relevant documents within the terms of the final sentence of Article 5 of the Hague Service Convention. There was no proper evidence put before me that Turkish law prohibits service by post or email. All I had was some rather exiguous internet researches by Mr Bowen. In the absence of any proper evidence in the normal way I take Turkish law to be the same as English law (which permits service by post or email).

For all these reasons the application of the husband to set aside the order of 27 February 2013 and all subsequent orders, which I deem him to have made, is dismissed.