Unauthorised or non-compliant service by email is causing problems for litigants and their solicitors. We review the rules and the prospect of getting relief from the court.
In 2018 the Supreme Court in Barton v Wright Hassall took a strict line about the unauthorised service of claim forms by email. Mr Barton was a litigant in person and hadn't spotted the special rules in Practice Direction 6A paragraph 4 about service by fax and email. He'd already had some email correspondence with the defendant's solicitors and assumed he could serve the claim form on them using the same method.
The court refused to help him out using its powers to validate defective service under CPR 6.15. He should have read the rules. He had courted disaster by issuing the claim at the very end of the limitation period. He then made no attempt to serve the claim form until the very end of its four month period of validity.
Lord Sumption, speaking for the majority of three, referred to the need for a bright line rule about service of a claim form. This is necessary to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them. Service of a claim form may also have significant implications for the operation of a limitation period.
He referred to the 2005 Law Society Guidance on electronic mail. It describes the difficulties email presents for solicitors: “there must be arrangements in place to ensure that the arrival of electronic communications is monitored, that communications constituting formal steps in current litigation are identified, and their contents distributed to appropriate people within the firm”.
Lord Briggs, speaking for the minority of two, noted that the provisions regulating service by email were created when this was a new mode of service. The world has moved on since then – issue and filing of claim forms is now done online in many courts. He queried how long these constraints upon service on solicitors by email will continue to serve a useful purpose and asked the Civil Procedure Rule Committee (with the majority's support) to consider whether PD 6A and CPR 6.15 are still fit for purpose.
The CPRC considered the request made in Barton. It agreed that that service by email should be addressed but said that this (and any other change to the service rules) would require a full consultation, particularly since the Supreme Court's decision was not unanimous.
Fast forward three years to 2021 where electronic communication, including online court hearings, has become the norm during the Covid-19 pandemic. Indeed, many organisations and firms of solicitors requested service by email during this period. One might have expected the attitude to, and indeed the rules about, service by email to have changed. Instead the courts are proving to be rigid in their approach to this issue and PD 6A paragraph 4 remains untouched.
Several recent cases illustrate the potentially disastrous consequences of unauthorised or non-compliant service by email, particularly where claim forms are concerned. They offer a good opportunity to explore the mysteries of PD 6A paragraph 4 and the court's approach to the requirements.
We'll start by looking at the rules in PD 6A.
Service by fax or other electronic means
“4.1 … where a document is to be served by fax or other electronic means –
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.
4.2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).”
Authorisation for service of a claim form on a solicitor
This is a separate requirement that must be satisfied before service of a claim form on the defendant's solicitor can be valid by any method. It is found in CPR 6.7: the defendant must have given authority for service on its solicitor or the solicitor must have confirmed in writing that they have authority to accept service.
It comes up a lot in the cases about service by email – see for example the recent decision in LSREF 3 Tiger Falkirk Ltd I S.a.r.l. v Paragon Building Consultancy Ltd. Here the defendant's solicitors, Clydes, had an email footer requiring service on them to be by email during the pandemic. The problem for the claimants was therefore not authorisation to serve by email but rather that Clydes were not authorised to accept service of the claim form at all.
What is required for service by email to be effective?
- Express agreement - The party being served or their solicitor must have expressly agreed to accept service by email. This may be stated on the solicitor's writing paper or by putting an email address on a statement of case or acknowledgment of service filed with the court. The fact that the parties or their solicitors have been corresponding by email does not constitute an agreement to accept service by email (Barton), nor does a request to send correspondence to a particular email address if service is not mentioned (Gregor Fisken Ltd v Carl).
- Enquiry about limitations - The party wishing to serve by email must ask whether there are any limitations on the recipient's agreement to accept service, such as format and size of attachments. In Tiger Falkirk the claimants failed to do this. The judge commented that a failure to comply with paragraph 4.2 was unlikely to be sufficient to invalidate service by email if it was otherwise authorised and technically unobjectionable. However, other judges might not take the same view given the Barton approach to the mandatory requirements of PD 6A.
- Use of correct email address - The document must be sent to the specified email address. In R (The Good Law Project) v Secretary of State for Health and Social Care the Government Legal Department's email footer said that it accepted service by email and referred to a webpage entitled “Serve the Treasury Solicitor with legal proceedings”. This required claim forms to be served at email@example.com. GLP sent an unsealed copy of the claim form to that address “by way of service” copying in the relevant GLD individuals but when serving the sealed claim form the next day, sent it only to the individuals and not the specified address. The court held that this was defective service and refused relief under CPR 6.15. GLP are attempting to appeal the decision which they say “reduces the law to an artificial game played without reference to reality”.
When will the court give relief?
The answer to this question depends on whether the document being served is a claim form or not.
Barton makes it clear that a failure to comply with the requirements for service of a claim form by email will rarely if ever lead the court to validate the defective service under CPR 6.15. There is no duty on the defendant to point out the problem to the claimant: since Barton the courts have consistently rejected arguments alleging technical game playing on the part of defendants in this situation (see the Good Law Project case where the defendant only queried the validity of the service eight days later, after the relevant time limit for service of the claim form had expired). The only circumstance in which the position might be different is where there is still a substantial period before expiry of the limitation period (see Woodward v Phoenix Healthcare Distribution Ltd).
The general power of the court to rectify matters where there has been an error of procedure in CPR 3.10 cannot be used to validate defective service of a claim form (Piepenbrock v Associated Newspapers Ltd and Boxwood Leisure Ltd v Gleeson Construction Services Ltd).
There is a conflict of views about defective service of a document other than a claim form. In Serbian Orthodox Church v Kesar the judge concluded that CPR 3.10 could not be used to validate defective service of a document other than a claim form (this was a notice of commencement of detailed assessment proceedings sent to an incorrect email address) because CPR 6.27 applies (in effect, it applies CPR 6.15 to other documents). However, pre-Barton, CPR 3.10 was used to validate defective service of particulars of claim in Integral Petroleum SA v SCU Finanz AG.
What is clear is that the courts are often prepared to help a party which has served a document other than a claim form by unauthorised email, as can be seen from Ipsum Capital Ltd v Lyall (defence) and Serbian Orthodox Church (notice of commencement).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.