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04 JUN 2020

BLOCKED EMAILS NOT TREATED AS SUCCESSFULLY DELIVERED

James Burgoyne of Brunel Professions on implications of deadlines not being met

Practitioners should be aware that email blocked or diverted by another’s IT system is not treated as successfully delivered.

Recent case-law has confirmed that if an email does not reach an addressee, even if it was their own IT system which blocked the communication, it will not be treated as received. The judge in the case was explicit that delivery to the recipient’s server was not sufficient.

This has significant implications for any time sensitive communications, and could mean that contractual or procedural deadlines would not be met.

Acceptance of a contract, submission of work in accordance with programme, notice of appeal, invoices and payless notices are all immediate examples of email communications which might be affected.

The case was Ashfield v HMRC [2020], and involved the submission of notice of appeal to the court within the court’s required deadline. The appellant’s solicitor’s email was successfully sent but was never received by the court. As such the court ruled that it had never arrived and that the appeal had not been received before the deadline for submission had expired.

In reaching this decision the judge took the commonsense view that the problems with email delivery were well know and that it was simple for the solicitor to have checked receipt. Whilst true, this does have implications for busy professionals where checking receipt of every significant communication is a drain on attention and resource. Nevertheless, the decision has emphasised that this must routinely be the case, if email communications are not also followed up by letter.

The story did not end there in the Ashfield case as the court gave permission for the late appeal to proceed because the case involved significant sums of money for the appellant. Whilst no hardship was caused to the appellant as a result of the strictness of the court’s view in this case, the precedent has nevertheless been set for the future and where the outcomes may be different.

As well as the practical step of checking receipt, a further mitigation step is available to professionals of clauses within their appointment which can deal with the treatment of email and delivery failure. They can also deal with the wider exposures created by the use of email – for example an exclusion of liability where email has been blocked, modified or redistributed. Professional indemnity experience of malicious cyber related issues continues to mount, and the possibilities of external interference or unexpected outcomes due to attempted external interference are important to consider.

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James  Burgoyne

James Burgoyne

Director - Claims & Technical

James joined Brunel in 2009 and heads up the Technical and Claims Department. As well as representing Brunel on the ACE PII panel, he writes occasional pieces for us on insurance, risk and associated topics.

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