Navigating Admiralty Claims: The High Cost of Unsanctioned Electronic Service

Introduction

Globally, maritime disputes ranging from ship ownership, cargo damage, and personal injury (commonly referred to as admiralty claims) are often handled under a specialised legal framework.

In Kenya, while these cases are heard by the High Court, the applicable law is not domestic; instead, Kenya applies English law. This unique arrangement is mandated by Section 4(2) of the Judicature Act (Cap 8). The Act requires the High Court to exercise admiralty jurisdiction in the exact same manner and extent as the High Court
in England. This position has been consistently upheld by Kenyan courts, most notably in the landmark decision of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48.

Electronic Service in Admiralty Claims

Kenya’s Civil Procedure Rules, 2010, which regulate proceedings in the High Court and subordinate courts, permit a party to serve documents electronically, including by email to the other parties. In such cases, proof that the documents were successfully delivered is generally sufficient to demonstrate valid service.

However, in admiralty proceedings, this mode of service is not considered valid. This is because the governing procedural framework is found in Part 6.3(1)(d) of the United Kingdom’s Civil Procedure Rules 1988 (UKCPR), together with Practice Direction 6A, paragraph 4.1. These provisions require that electronic service is only effective where the intended recipient has expressly agreed in writing to accept service by electronic means
and has supplied the specific email address or electronic identifier to be used.

Proper service of process is a fundamental component of the justice system, as it safeguards each party’s right to receive adequate notice of the proceedings and a meaningful opportunity to be heard. When service is improper or defective, the consequences can be severe, including dismissal of the action, significant procedural delays, or, in some cases, the permanent loss of the right to pursue the claim.

Given the importance of these principles, English courts prioritise strict procedural compliance over considerations of practical convenience in methods of service. Two leading cases highlight the dangers of failing to adhere to the prescribed rules. These key authorities are:

  1. Barton v Wright Hassall LLP [2018] UKSC 12: The UK Supreme Court held that serving a claim form by email is ineffective unless the intended recipient has expressly agreed to accept service by that method—
    even where the document is in fact received. The Court declined to validate the defective service retrospectively, stressing that procedural rules operate as strict “bright‑line” requirements rather than
    flexible guidelines. Because the appeal was dismissed, Mr. Barton’s claim ultimately became permanently time‑barred.
  2. Bellway Homes Ltd v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347: The Court of Appeal confirmed that a defendant is under no legal obligation to respond to a claim until valid service has occurred. The ruling clarifies that if the service of process is legally flawed, the litigation is effectively stalled. The proceedings can only move forward if the defendant makes a conscious, explicit choice to waive the defect and accept the service as valid despite the error.
Why Consent Is Non-Negotiable

Under English law, prior written consent serves three essential functions:

  1. Legal Certainty: It distinguishes “service” from mere “receipt,” avoiding downstream disputes.
  2. Fairness: It protects parties—particularly the unrepresented—from unexpected digital correspondence and missed deadlines.
  3. Technical Reliability: It accounts for spam filters, server outages, and file-size limits, helping ensure that documents reach the intended recipient.
Admiralty Implications & Best Practices

Admiralty claims frequently involve urgent remedies such as ship arrest. Even so, the claim form must be served in strict compliance with the Part 6 of the UKCPR 6 and Practice Direction 6A. Without consent to electronic service, purported service may be ineffective, causing delay and escalating costs.

As illustrated in Barton v Wright Hassall LLP, failure to observe these service requirements can result in the claim being struck out. If the limitation period lapses during this process, the claimant forfeits any chance to refile.

Since “technical” objections can succeed, nothing short of prior, explicit agreement to service by email is likely to suffice. Although reform of electronic service rules has been discussed in the UK, Barton v Wright Hassall LLP remains authoritative, and Kenyan courts generally follow English jurisprudence in Admiralty matters

Conclusion

In admiralty litigation, it is easy to assume that the applicable law is the same as the law of the dispute resolution forum. Such an assumption can be fatal to one’s case. Despite the high stakes and pressure often inherent in admiralty litigation, it is critical that parties take the time to carefully evaluate the intricacies of the applicable law and how best to navigate it. This way parties can avoid technical pitfalls such as improper service.

Please contact k.kinuthia@adra-advocates.com should you have any questions regarding the information in this legal article.

Disclaimer: The information contained in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. While the information is accurate as at date hereof, there can be no guarantee that the information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act upon such information without appropriate professional advice after a thorough examination of the particular situation.