ARE YOU SERVING DOCUMENTS BY E-MAIL? IS IT SAFE? ARE YOU SURE? A CASE STUDY IN PROBLEMS THAT CAN OCCUR
The Civil Procedure Rules allow service of documents by e-mail. However I was involved in a case today which demonstrated that relying on e-mail service can be problematic and led to the sender requiring relief from sanctions.
CPR 6.20 – (1) permits service of document by a number of methods including:
“fax or other means of electronic communications in accordance with Practice Direction 6A”
PRACTICE DIRECTION 6A
This Practice Direction deals with service within the United Kingdom. Rule 4 deals with 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 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.”
It is important to note that the rule for using e-mail is different to that for fax. A fax number on the writing paper of the solicitor is enough for it to be used for service. In order to be able to serve electronically the writing paper must state, expressly, it can be used for service or given in a statement of case.
THE POTENTIAL PROBLEM: THE PERSON SERVING HAS TO CHECK IT CAN ARRIVE
Not many people, I suspect, will have read 4.2 of the Practice Direction.
“4.2 Where a party intends to serve a document by electronic means (other thanby fax) that party must first ask the party who is to be served whether thereare any limitations to the recipient’s agreement to accept service by suchmeans (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).”
So there is a specific duty on the sender to check that the defendant’s system is able to receive the documents and to check for capacity.
THE PROBLEM TODAY: A LARGE E-MAIL DID NOT ARRIVE
This was an issue in a case I was involved in today [I do not have my client’s permission to give full details, but this may be forthcoming]. One party had expressly agreed to service of witness statements by e-mail. However the statements (with voluminous exhibits) were too large for the recipient’s server. The sender received a document (from its own server) that it had been received; however it was stopped by an external firewall. To make matters worse the notice that it was not sent was sent to a different e-mail account (used for keeping spam etc.) rather than directly back to the e-mail account.
Needless to say the statements were being sent on the very last date for service.
The sender had rung up to explain that the documents and exhibits were large and ask whether service by e-mail would suffice. There was no express consideration of rule 4.2. No-one addressed their mind to the limits and capacity of the recipient’s server. In fact the capacity was well below the size of the documents that were served.
DID THE DEEMED SERVICE PROVISIONS APPLY?
CPR 7.5 provides deeming provisions for the date of service. For service of the claim form by “other electric method” the claim form is deemed served on “sending the e-mail or other electronic transmission”.
However this only applies to service of the claim form.
The judge today decided that if an e-mail did not, in fact, arrive, it could not be deemed to have arrived and the sending party, therefore, needed relief from sanctions.
SAFETY FIRST IN SERVICE OF DOCUMENTS BY E-MAIL
- Read the Practice Direction in full.
- Do not assume that you can serve by e-mail merely because you are corresponding by e-mail the rules require an express contracting in of service by e-mail or the e-mail address to be given in a statement of case etc.
- Be aware that there could be problems if you serve by e-mail and the recipient’s server does not have the capacity to receive it. There is a duty, in the rules, on the sender to check this.
- The rules impose a specific duty on the sender to enquire as to format and maximum size of attachments.
- Don’t leave everything to the last minute and then rely on e-mail if you can help it. E-mail transmission can go wrong. Unless there is express agreement to service by e-mail then sending documents by this method may not comply with the sender’s obligations in any event.
- Solicitors may wish to consider whether they wish to give their e-mail address on statements of case. This, automatically, gives the right to service by e-mail.