The lawfulness of emailing licensing decision notices

Up and down the country, and for several years, licensing authorities have routinely emailed out their Decision Notices to relevant parties following determinations at licensing hearings. However, as the High Court has pithily observed in an earlier licensing case: “Orthodoxy is no more proof of legality than novelty is of illegality”.[1] The legality of emailing Decision Notices in a licensing context has now been examined and ruled upon by the High Court.  

The High Court, by a decision of Sir Peter Lane, has dismissed a taxi driver’s appeal by way of case stated relating to the service of statutory notices and decisions by local authorities under sections 300(2) Public Health Act 1936 and section 233 of the Local Government Act 1972, finding that e-mail service of such decisions is valid and effected on delivery, regardless as to whether the e-mail goes to the recipient’s spam folder and is thereby not seen until the deadline for making an appeal has expired.

Although this particular case concerned the service of a notice revoking a dual taxi licence, these provisions govern a wide range of statutory decisions, and it is therefore a judgment of wide application. The Court also deals with a point of practice and procedure, being the scope of an appeal by way of case stated in light of the findings of the Magistrates’ Court and the arguments ventilated before them.

The appellant was a taxi driver whose licence had been revoked by Maidstone Borough Council following a hearing before their licensing sub-committee. The decision was orally announced at the conclusion of the hearing. The formal written Notice of the Council’s decision was sent to him by e-mail, and only by email. Any appeal to the Magistrates’ Court must be brought within 21 days of that notice being “given to” or “served” on the driver. That appeal period is inflexible and may not be extended by a court.[2] The driver appealed 50 days later, claiming that the email had gone into his spam folder and so he had not seen it before then.

The Magistrates’ Court dealt with the issue of whether his claim was in time by way of a preliminary issue hearing. The appellant argued before the Magistrates’ that the Council ought to have confirmed with him that he would accept the notice by e-mail, as the Civil Procedure Rules (CPR) requires in the context of civil litigation. Failing that, the driver argued, service was not valid, and so the timer had not started to run until he became aware of the notice.

The Magistrates’ Court deemed his claim out of time, and therefore found they lacked jurisdiction to hear the claim, because e-mail service was good service and was effected on the day the e-mail was sent. The driver appealed to the High Court by way of case stated against that finding.

On appeal, the argument shifted to focus on the assertion that the e-mail went to the appellant’s spam folder. The appellant now conceded that e-mail service was good service, even without prior consent. But, he argued, for service to be validly effected, a recipient had to be made aware of the decision, or at least be given an opportunity to be made aware of it. The appellant said this did not occur here, because the e-mail was sorted into spam and he had no way of knowing that. Time for making his appeal therefore started when he read the notice, which meant his appeal had been in time.

The High Court dismissed the appeal on all counts.

To begin with, it accepted the Council’s argument that the spam assertion was outside the factual scope of the appeal. The Magistrates did not find that the e-mail went to his spam folder, because that had not been the focus of the appellant’s argument before the lower court. Indeed, the Magistrates made no finding of fact on this issue. For reasons explained below, the High Court was not prepared to assume that the e-mail went to spam.

That disposed of the appeal entirely, because if the e-mail did not go to spam, then it was accepted that service was validly effected on the day of sending.

However, the Court went on to hypothetically consider whether it would have found the e-mail went to spam, if it had jurisdiction to make such a finding. The Court accepted the Council’s case that such a finding should not be made, because the spam assertion lacked credibility and was inconsistent with other evidence the appellant had given. For example, the Council pointed out that the appellant had apparently replied to the email attaching the Notice at a time when he claimed not to have received that very same email he was replying to.

Finally, the Court hypothetically assumed the e-mail went to spam and considered when service would be effected in that scenario. This was the meat of the dispute on the law. The Court accepted the Council’s argument that service by e-mail occurs, essentially, when the e-mail is delivered to the recipient’s e-mail system. The Court accepted the analogy the Council drew with cases from the world of arbitration, where notices need to be served to commence an arbitration, in which e-mail service is effected on successful delivery of the e-mail. The Court found that the appellant had an opportunity to be made aware of the notice, because it was a click away in his spam folder.

Resultingly, the High Court has confirmed that local authorities are entitled to serve notices and decisions under the relevant provisions by e-mail, and service will not be defeated by a claim that the e-mail, though successfully delivered, went to the person’s spam folder. The judgment also helpfully clarifies that a case stated appeal is limited to the factual findings made by the Magistrates’ Court. Whilst an appellant can change the focus of their challenge on appeal, in doing so they run the risk of departing from the findings they need to ground their case.

Comment

This was a case with the potential to radically shake up how local authorities communicate their decisions and notices, and indeed the statutory rules of service more generally. Identifying the true date on which notices and decisions are served can be of great consequence. In this case, it would determine whether or not the driver could appeal against the revocation of his licence, and indeed the finding underlying that decision, which is that he was not a fit and proper person to hold a licence.

Had the Court accepted that a notice contained in an e-mail is not served if it goes to a person’s spam folder, that would have required local authorities to confirm, by some means, that a person has actually seen the notice, before it could be deemed served. That would have been a considerable burden on local authorities, who would presumably have to check in with recipients, by e-mail or phone, to ensure they had seen the decision. It would also mean that every recipient of an adverse decision who found themselves out of time to bring a challenge could argue the e-mail had gone to their spam, or that they otherwise had not seen it. That would be a very difficult point for a court to resolve on the facts.

Ultimately, the Court’s decision validates the status quo, and does so for the first time. Local authorities are entitled to serve decisions by e-mail (as so many of them commonly do), and so long as those e-mails are received by the recipient’s system, they will be deemed received and served. Whether or not the e-mail system then sorts that message into spam, such that it is not seen by the recipient, is irrelevant to the question of service.

A few points of good practice follow from the decision.

Firstly, local authorities who choose to serve by e-mail should take care to request a delivery receipt. If they do not get a receipt confirming successful delivery, it will be hard to prove the message was actually received by the e-mail system and thereby served. If a bounce back is received, some other method, preferably a statutory one, should be used to serve the notice. They should, of course, also use an e-mail address they know to be the recipient’s.

Secondly, recipients (e.g. licensees and their lawyers/consultants) need to keep an eye on their spam folders. Receipt, and service, will not be defeated by an e-mail being sorted to spam, even if the licensee does not see the notice until after the appeal period has expired. It is the licensee’s responsibility to do this.

Finally, more generally, parties to a case stated appeal need to ensure the arguments they pose to the Magistrates, and which are reflected in the case that is stated for the High Court, reflects their position properly. In this case the appellant’s legal argument fell at the first hurdle because the findings of fact did not support the evolved argument they presented to the High Court. The crafting of a case stated requires care and a strategic view as to what will need to be argued before the High Court on appeal. Parties should strive for flexibility so far as possible to avoid being boxed in by limited or unclear findings by the Magistrates.

The full judgment in Berow v Maidstone Borough Council [2026] EWHC 635 (Admin) can be accessed here: https://www.bailii.org/ew/cases/EWHC/Admin/2026/635.pdf

Gary Grant and Armin Solimani, Barristers at Francis Taylor Building, acted for the successful local authority, instructed by Helen Ward of Mid Kent Legal Services.

^[1] See Turner J in Extreme Oyster v Guildford BC [2013] EWHC 2174 at [30]

^[2] Stockton-on-Tees Borough Council v Latif [2009] EWHC 228 (Admin)).