More and more legal professionals are now relying on email correspondence to exchange and serve legal documents in ongoing or current proceedings. However, it is crucial to take into account whether electronic service was successful and done in accordance with the Civil Procedure Rules (or "CPR"). Failure to comply with the rules can be detrimental to your case.
Advancements in technology have generally been embraced by the legal profession; however, the Covid-19 outbreak has made it even more important for legal professionals to adopt digital workflow habits that will ultimately reduce procedural tasks. A major shift toward a more technological and hybrid manner of working has been observed over the last couple of years. In this more digital legal context, e-signatures, electronic bundling, and online document filing are now becoming standard processes. Additionally, it is becoming more typical for parties to only use email exchanges as their primary form of communication in place of written letters. This is not unexpected because email not only saves time but also resources and enables the speedy and effective sharing of information.
More and more legal professionals are now relying on email correspondence to also exchange and serve legal documents in ongoing or current proceedings. However, it is crucial to take into account whether electronic service was successful and done in accordance with the Civil Procedure Rules (or "CPR"). Failure to comply with the rules can be detrimental to your case by invalidating the service and potentially being fatal to your claim altogether. It is thus crucial to get it right.
The Rules
The question therefore is whether the current CPR rules cater for service in a digital legal world, and if so, under what circumstances is electronic service valid? Part 6 of the CPR deals with service of documents. Specifically, CPR 6.3(d) and CPR 6.20(d) permit service of a claim form, or any other document by email, provided it is done so in accordance with Practice Direction 6A (or “PD”). Pursuant to PD 6A paragraph 4.1, the party who is to be served by electronic means must have indicated in writing that they are prepared to accept such service by such means and indicated the address to which service can be made. Furthermore, PD 6A paragraph 4.2 also requires a party undertaking the electronic service to make enquiries as to whether there are any limitations impacting the receipt of these documents, for example, if there are any size limitations, security concerns, or accessibility issues in opening documents of a certain file type.
Potential pitfalls and considerations – case studies
On the face of it, the rules seem clear – obtain agreement in writing and clarify the format in which the documents are to be served so they are easily accessible. However, there are other factors to consider which may give rise to a dispute relating to effective service.
For example, in the recent case of R (Tax Returned Ltd and others) v Commissioners for His Majesty's Revenue and Customs [2022] EWHC 2515 (Admin) (11 October 2022) the Administrative Court had to consider whether specifying more than one email address for service was compliant with PD 6A para 4.1. In interpreting the service rules, the Court held that service would be ineffective in such circumstances, unless the serving party seeks to clarify in advance which one single email address should be used for service. In this case, a dispute had arisen over service of a claim form as the receiving party had provided 3 separate emails, only on 2 of which they had confirmed that service would be accepted. The serving party sent the claim form to the one non-approved email and one of the approved emails. The Court held that it would be absurd if parties were to provide multiple email addresses to which good service could be effected, and freedom for the serving party to elect whichever email they wished. Because the serving party did not clarify one correct email with the recipient, the claim was deemed to have not been properly served (although the Court did retrospectively allow service under CPR 6.15 in this case).
Another recent example is the case of Sir Robert McAlpine Ltd v Richardson Roofing Co Ltd [2022] EWHC 982 (TCC). In this case, the serving party served Particulars of Claim by email on their opponent by sending it to an email address specified on the Notice of Acting. The Court held that there was not effective service as the Notice of Acting does not specifically indicate acceptance of service by email and the serving party never sought to obtain an agreement for service to that address. It was held that they could not simply assume that service would be accepted by including that email listed in the Notice, and therefore, service was not effective within the scope of the Part 6 and PD 6A paragraph 4.1.
Commentary
The aforementioned cases show two straightforward errors that a serving party could make that may detrimentally impact a case, and precisely how narrowly the Court could interpret the rules on service. In a climate where digitalisation is becoming standard in the legal sector, it is particularly easy to slip into this trap. Therefore, before relying on electronic service, it is crucial to be explicit and obtain written consent from the other party. Future CPR revisions and adaptations to fit a more digital justice system may be necessary, but until then, legal practitioners are advised to make sure they are adhering to the Rules and Practice Directions of Part 6.
Written by : Simeon Simeonov, Foreign Qualified Lawyer
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