Dispute Resolution Singapore Client Alert October 2015 Singapore High Court confirms that service of documents by email under the Building and Construction Industry Security of Payment Act is valid With the proliferation of email communications at work, people have come to rely on emails as a reliable and even default mode of communication. However, there have been numerous disputes under the Building and Construction Industry Security of Payment Act ("SOP Act") as to whether email is a valid mode of service. In Progressive Builders Pte Ltd v Long Rise Pte Ltd  SGHC 223, the Singapore High Court has finally made clear that service of documents by email under the SOP Act can be valid. The Dispute The plaintiff ("Progressive Builders") had contracted the defendant ("Long Rise") for Long Rise to provide labour and tools to carry out structural works for a construction project. When the working relationship between the parties worsened, Progressive Builders claimed that Long Rise was in breach of the contract by not completing works by the agreed dates. Progressive Builders subsequently terminated the contract with Long Rise. In response, Long Rise commenced adjudication proceedings against Progressive Builders. Consistent with the parties' previous conduct of exchanging payment claims and payment responses by email, Long Rise's adjudication application was premised on a progress claim ("PC13") that was served only by email. During the adjudication, one of Progressive Builders' contention was that PC13 was not validly served. The adjudicator determined, inter alia, that service of PC13 via email was valid. Progressive Builders then applied to the Singapore High Court to set aside the adjudication determination, arguing among other things, that PC13 was not validly served in accordance with the SOP Act. The issue is dependant on the interpretation of section 37 of the SOP Act which provides a list of means by which parties may serve their documents. Both the SOP Act and the contract between the parties were silent on the appropriateness of service by email. Progressive Builders argued that section 37's list is exhaustive and since it did not include email, it is not a valid mode of service under the SOP Act. On the other hand, Long Rise contended that section 37 is not an exhaustive list and cited Australian and English authorities in support. For further information please contact Nandakumar Ponniya +65 6434 2663 firstname.lastname@example.org Wong Tjen Wee +65 6434 2686 email@example.com Baker & McKenzie.Wong & Leow 8 Marina Boulevard #05-01 Marina Bay Financial Centre Tower 1 Singapore 018981 www.bakermckenzie.com 2 Client Alert October 2015 The High Court's Decision The issue of whether email service was a valid mode of service under section 37 of the SOP Act was put squarely before the High Court. The judge held that email service was valid, but subject to an important caveat that the document be brought to the attention of the intended recipient. Section 37 of the SOP Act (providing for the modes of service of documents under the Act) was held to be facultative and not mandatory and email service of documents would be permitted "as long as the said documents were brought to the attention of the recipient". The judge further held that such a view would comport with the position taken by other jurisdictions. In particular, the judge applied the "effective informal service rule" (i.e. that the service of documents by means other than those stated in the relevant statutory provision shall be valid as long as the documents have come to the attention of the intended recipient). It must be noted that the judge then considered, on the facts, that Progressive Builders (the intended recipient) had received PC13 and, further, that parties had been consistently dealing with each other via email. On that basis, the email service of PC13 was valid. Comment The issue of whether email is valid service under the SOP Act has long vexed parties relying on the adjudication procedure. This case finally confirms that email service under the SOP Act is permissible under certain conditions. The validity of email service will still have to be determined from the facts. A party claiming valid service by email must be ready to prove that the document had come to the attention of the recipient. In order to satisfy such a burden of proof, it would be important to keep records of parties' previous course of correspondence by way of email, especially in relation to the transmission of payment claims and payment responses. It may also be useful to seek confirmation of receipt from recipients, especially if important documents are concerned. ©2015. All rights reserved. Baker & McKenzie.Wong & Leow is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm. This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.