In October 2022, the Administrative Court held that an agreement to accept service of a claim form by email was valid only if the recipient nominated a single email address rather than multiple addresses. The Civil Procedure Rule Committee has now introduced an amendment to the CPR to clarify that multiple email addresses can be provided.
Background and recent case law
CPR PD 6A.4.1 provides parties to litigation with an option of effecting service of claim forms and other documents by electronic means. To rely on this provision, the party to be served must have indicated in writing that it or its solicitor is willing to accept service by electronic means and provided the email address to which the document must be sent. Service of claim forms and other documents by email has become more common since the Covid pandemic when parties and solicitors were forced to work remotely.
In R (Tax Returned Ltd & Ors v Commissioners for HMRC [2022] EWHC 2515 (Admin) (decided in October 2022), the Administrative Court considered the wording of PD 6A.4.1 and held that if a party provides more than one email address for service by electronic means, the serving party cannot undertake good service using this method. In that case, the receiving party had provided two email addresses, so service of the claim form was ineffective. (See our previous post.)
This decision was not welcomed by practitioners as it is commonplace to provide more than one email address for service for practical reasons and to reduce risk.
In December 2022, in the case of Entertainment One UK Ltd & Anor v Sconnect Co Ltd & Ors [2022] EWHC 3295 (Ch), the judge declined to apply Tax Returned (and held that it only applies to judicial review claims). The Court held that service of the claim form was valid even though the defendants' solicitors had provided more than one email address.
The judge in Entertainment One noted the practical reasons why more than one email address is often provided and commented that forcing parties to use just one email address may have unintended consequences. In his view, insistence that service could only be effected by one email address was an over-technical interpretation of PD6A.
Amendment to CPR
Following these cases, in January 2023 the Civil Procedure Rule Committee introduced an amendment to PD 6A.4.1 to clarify the position and avoid the effect of the Tax Returned decision.
The amendments to PD6A.4.1 highlighted below will come into effect on 6 April 2023. They clarify that multiple email addresses can be provided without invalidating this means of service. However, parties should note that where multiple email addresses are provided by the receiving party, service will be effective when the document is sent to any two of the email addresses.
"Service by fax or other electronic means
4.1 Subject to the provisions of rule 6.23(5) and (6), 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 email addresses 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 or email addresses 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 or email addresses may be used for service; or
(c) a fax number, e-mail address or email addresses or electronic identification set out on a statement of case or a response to a claim filed with the court.
(3) Where a party has indicated that service by email must be effected by sending a document to multiple email addresses, the document may be served by sending it to any 2 of the email addresses identified."
Key takeaways
This is a welcome clarification of the rules on service of documents by email. The provision of multiple email addresses for service will not invalidate this means of service. Where multiple email addresses are provided, a serving party may send the relevant document to all of them although service will be valid if the serving party sends the document to just two of the addresses.
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.
