"To ferret around correspondence ... to try and discern a sufficient indication" is not how the rules of service by e-mail work.
In 2016, the average number of UK e-mails sent PER DAY was around 215.3 Billion! That was against just 13 billion letters sent PER YEAR! It is now 2024 and the latest data from Royal Mail show that for the financial year ending March 2022, 8 billion letters were sent PER YEAR. With these figures in mind, you could perhaps be forgiven for thinking that serving a legal document by e-mail to an account which acknowledges it would constitute valid service. But in reality, your case would be struck-out and your opponent would demand their legal costs!
This Guidance Note helps you hack the legal firewall and serve a document by e-mail.
SUMMMARY
In concise summary, yes you can serve a legal document by e-mail, providing you have first undertaken the following:
The sender MUST ask the recipient if they will accept service by electronic means?
The recipient MUST confirm agreement in writing and the e-mail or the fax number to be used.
The sender MUST seek clarification as to whether there are any restrictions.
While this may seem simple, there are graveyards full of cases that died because someone e-mailed a document to a 'friendly' opponent so examples of which are below:
EXAMPLES OF VALID & DEFECTIVE SERVICE
We are frequently, instructed by a variety of lay, commercial and legal clients to either set-aside a judgement for defective service arising from e-mail or to vary orders for costs based on e-mailed statements of costs. The following are real life examples of where the court has found service to be either valid or defective (names altered obviously).
E-MAILING THE CLAIM FORM TO A SOLICITOR'S INBOX
Two law firms had engaged in correspondence over unpaid service charges. All correspondence between the solicitors had been by e-mail. An agreement could not be reached to settle the service charges. A LLP confirmed by e-mail that they were instructed to accept service on behalf of their client. B LAW in response e-mail the Claim Form. A Defence was subsequently missed and judgement in default applied for. B LAW argued that service had been defective as:
Their firm had confirmed in correspondence that they would accept service.
They had not confirmed that they would accept service by e-mail.
Unless explicit consent had been given in compliance with the rules, then electronic service.
On a practical note, the Defence had been missed as that solicitor had gone on holiday which was why consent had not been given.
A LLP argued that service was effective as confirmation had been given by e-mail AND there was nothing on the B LAW's letterhead to say they did not accept service by e-mail.
The Judge however, was not convinced the rules clearly stated that the sender must ask if service was accepted by electronic means and the recipient must confirm an e-mail address. If there is any ambiguity, the 3rd leg of the test clearly indicated that the onus was on the send to confirm if there were any limitations. Service was Defective.
E-MAILING THE STATEMENT OF COSTS TO A TEAM INBOX
Two law firms engaged in litigation and as will ultimately happen, one prevailed at an interlocutory hearing. The victor demanded the spoils of war and sought summary assessment of their costs based on a Statement of Costs e-mailed 24 hours before. The defeated however, was not willing to go down without a fight and argued defective service of the Statement of Costs based on the fact:
They had never been asked if they would accept electronic service.
They have never confirmed they would accept electronic service.
Their letterhead actually stated 'we do not accept service by e-mail'.
Service was VALID! The Judge reviewed the papers lodged at court and noted that on the court forms, the defeated had explictly written a contact e-mail address for a team beneath their address for postal service. This was held to be in compliance with the rules as we see below.
ELECTRONIC SERVICE - THE RULES
The rules relating to electronic service are contained in CPR PRACTICE DIRECTION 6A 'Service within the United Kingdom.' In relation to e-mail and/or fax, the rules are found at para. 5. This states that where a document is to be served by electronic means:
(a) The party whom is to be served or that party’s legal representative MUST have previous expressly indicated in writing to the party’s serving –
(i) That he or she is willing to accept service by electronic means, and
(ii) The fax number, e-mail address, or electronic identification to which it should be sent; and
(b) The following shall be taken as sufficient written identification for the purposes of the preceding paragraph –
(i) A fax number set out on the writing paper of the legal representative of the party whom is to be served,
(ii) A fax number, e-mail address or electronic identification set out on an application form or a response to an application filed with court.
In common cases where there has been an exchange of documents between solicitors via e-mail the provisions of para.6 are relevant.
6. Where a party seeks to serve a document by electronic means that party should first seek to clarify with the party whom is to be served whether there are any limitations to the first recipient’s agreement to accept service by such means, including in relation to the format which documents are to be sent and the maximum size of attachments that may be received.
The vast majority if not all cases of electronic service will be dealt with in the county court ats District Judge level. These decisions however informative, are not binding and so should an authority be required to interpret the rules, one need look no further than the High Court decision in a Technology & Construction dispute (note a field where documents are like rain drops in a thunderstorm).
In McAlpine the court ruled that there had not been valid service of the particulars of the claim under PD 6A.4. The facts were as follows:
On 18 March 2022, before the deadline date, the particulars of claim were sent to the defendant’s solicitors by e-mail only. Having received these, the defendant’s solicitors argued that service by e-mail did not comply with the requirements of CPR PD 6A. Consequently;
On 25 March 2022, a copy of the particulars was served by hand. The claimant subsequently sought a declaration that the original service was valid or, that they should be allowed an extension of time so as to encompass the service by hand.
It was the Claimant's case that pursuant to CPR PD 6A.4, the defendant’s solicitors had indicated in writing, by including their email address in their notice of acting, that they would accept service by email. Further or in the alternative, as the Notice of Acting, included an e-mail address, was a response to the claim and therefore a sufficient indication for the purposes of PD 6A.4.1(2)(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”, for example, the address details in the pro-forma claim form).
Waksman J found that service was Defective! The High Court held the defendant’s solicitor had not made any explicit indication in writing that they would accept service by email (paragraph 17, judgment). The claimant relied both on the defendant’s failure to comment on previous service of a stay of application by email and on the defendant being aware of “service” of that application having been mentioned to the court in correspondence. These instances were not explicit. It did not matter that they had not objected previously!
The judge also held that simply putting an email address in a notice of acting was not an indication. Nor was the notice a direct response to a claim.
The judge considered that "to ferret around correspondence" "to try and discern a sufficient indication" was not how service rules or practice directions should be dealt with. It was important to know clearly, and in advance, what was going to constitute proper service. What needed to be done in good time before the service deadline was to write to the other party and ask whether they accepted service by email. Then, everybody would know where they stood and would be aware of the circumstances where the court would treat them as having indicated a willingness to accept service
COMMENT
It can be disheartening to note that in 2024 and where there is no dispute that your opponent has received the documents to be served, the law will still react with shock and suspicion at the notion of electronic service, save for by Fax.
While at first glance this may appear to be a pre-historic reaction to digitalisation, the rules exist to provide certainty and are ultimately in the public good. It is simply not in anyone's interest for Possession Orders or Claim forms >£100'000 to be lying in Spam Boxes or the inbox of an employee currently on holiday. The purpose of first checking if service will be accepted or providing a standard inbox for service removes these obstacles but in the interim, solicitors are obliged to act in their clients best interest so should you fall afoul of these rules you should expect your opponent to take advantage.
Ultimately, the safest course of action if e-mailing a document and you suspect your opponent may attempt misdirection is to also post 1 copy by 1st class post, or; go down to the basement and Fax it.
For the avoidance of doubt, we accept service at service@renwick.law and the same is confirmed on all letterhead, e-mail and other communiques. We have even used the above/different color to highlight it. But; despite what we thought to be a fairly straightforward easy to remember e-mail address, we dealt with 1 fraudster whom kept serving her documents to personal inboxes, marketing@renwick.law, contact@renwick.law and accounts@renwick.law. While we rather sportingly, corrected her as to the correct address on no less than 7 occasions, she maintained a steadfast refusal to ever serve her documents at service@renwick.law. This ultimately lead to her house and home being repossessed and the fraudster being evicted. For more information on this case, see the I-Design Construction litigation.
D E F I N I T I V E D E C I S I V E D I R E C T
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