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

For service of proceedings against a foreign state under section 12(1) of the State Immunity Act 1978, transmission through the Foreign and Commonwealth Office to the state’s Ministry of Foreign Affairs may be effected by e-mail. Transmission occurs when the complete documents reach the recipient’s electronic depository or server. The court may infer receipt from evidence that the e-mails were sent without an undeliverable notification, particularly where later e-mails to the same address generated delivery-failure messages. The claimant must satisfy the court, as a jurisdictional matter, that it has the better, or much the better, argument that receipt occurred.

The European Union, having indemnified the European Investment Bank for losses under six loan agreements, sought to recover money due from the Syrian Arab Republic. It applied for a declaration that documents required to institute the claim had been validly served by e-mail under CPR 6.44 and section 12(1) of the State Immunity Act 1978. The issue was whether the documents transmitted through the Foreign and Commonwealth Office had been received in the electronic depository or server of Syria’s Ministry of Foreign Affairs.

1. The application was granted. The court declared that the documents required to institute the proceedings had been validly served on Syria.

2. Section 12(1) of the State Immunity Act 1978 imposes a mandatory mode of service. The relevant documents must be transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the state concerned.

3. The meaning of transmission is informed by Anson v Trump [1998] 1 WLR 1404. In the context of modern electronic communication, transmission is complete when the complete document reaches the recipient’s electronic depository. The fact that it may remain on the recipient’s server before being printed or read is irrelevant.

4. As this was a jurisdictional question, the claimant had to show that it had the better, or much the better, argument that the e-mails had been received. The Foreign Office had sent the documents to the Ministry’s published e-mail address and received no delivery-failure notification. That was evidence of receipt. The inference was strengthened because later e-mails to the same address generated a failure notification stating that the recipient server was unavailable or busy and the mailbox was full.

5. The court was satisfied to the relevant standard that the documents had been transmitted through the Foreign and Commonwealth Office to Syria’s Ministry of Foreign Affairs by e-mail on 22 September 2017. The declaration sought was therefore granted.