SENDING DOCUMENTS TO THE COURT BY E-MAIL: THE PRACTICE DIRECTION AND POTENTIAL PROBLEM AREAS

February 13, 2014 · by · in Applications, Avoiding negligence claims, Civil Procedure, Costs budgeting, Relief from sanctions

An earlier post about the problems of serving documents by e-mail led to a flurry of comments on twitter about similar issues in relation to filing documents at court . I am awaiting some reports of cases where the lodging of documents by e-mail has been problematic. In the meantime  If you are filing documents by e-mail it is worthwhile getting to know Practice Direction 5B.  

(PD 5C deals with Electronic Communications in the Admiralty, Commercial, Mercantile Court and Chancery Division, I am not dealing with that Practice Direction here. The requirements are very specific).

POINTS TO NOTE

In a post-Mitchell world when arguments about compliance and time periods abound it is important that practitioners are fully aware of the requirements of the Practice Direction.  Just reading the Practice Direction it is clear that there are a large number of danger areas.

  • Can the document be sent by e-mail?
  • Is the document in the correct format?
  • What if the document is not received by the court?
  • What are the “deeming provisions” in relation to service?

USEFUL LINKS

The relevant links cannot be found in the documents but are here.

PRACTICE DIRECTION 5B – ELECTRONIC COMMUNICATION AND FILING OF DOCUMENTS

“PART 1: GENERAL GUIDANCE

General

1.1

Section I of this practice direction provides for parties to claims in specified courts to –

(1) communicate with the court by e-mail; and

(2) file specified documents by e-mail.

1.2

Section II of this practice direction provides for parties to claims in specified courts to file specified documents electronically via an online forms service.

1.3

Section III of this practice direction contains general provisions which apply to both Section I and Section II.

1.4

This practice direction does not allow –

(1) communication with the court or the filing of documents by email; or

(2) use of the online forms service,

in proceedings to which the Civil Procedure Rules do not apply”

 DANGER POINTS

Note if the Civil Procedure Rules do not apply then this Practice Direction Does not apply.

PART 2

“SECTION I – COMMUNICATION AND FILING OF DOCUMENTS BY E-MAIL

Interpretation

2.1

“For the purposes of this Section –

(1) a specified court is a court or court office which has published an e-mail address for the filing of documents on Her Majest’s Courts and Tribunals Service website; and

(2) a specified document is a document listed on Her Majesty’s Courts and Tribunals Service website as a document that may be sent to or filed in that court by e-mail.”

 DANGER POINTS

So you have to look at the website to be sure:

  • The court is a “specified court”
  • The document is a “specified document” that is allowed to be sent by e-mail.

VERY DANGEROUS POINTS

The website in question is here.  There is a detailed list of matters that can be lodged by e-mail.  However there are some importance exceptions.

  • You cannot file by e-mail any document for which a fee is payable. (Except in Preston)
  • I have looked at the list available here.  I cannot see that Precedent H appears on that list. (This list probably pre-dated Precedent H).
  • I understand that there are cases where courts have held that filing Precedent H by e-mail did not constitute good service.  The consequences of this are well known.

PART 3

Communications and documents which may be sent by e-mail

“3.1 

Subject to paragraph 3.2, a party to a claim in a specified court may send a specified document to the court by e-mail.

3.2

Subject to paragraph 3.2A, a party must not use e-mail to take any step in a claim for which a fee is payable.

3.2A

A party may make an application using e-mail in the Preston Combined Court, where he is permitted to do so by PREMA (Preston E-mail Application Service) User Guide and Protocols.

3.3

Subject to paragraph 3.3A and paragraph 15.1A of Practice Direction 52, if –

(a) a fee is payable on the filing of a particular document; and

(b) a party purports to file that document by e-mail,

the court shall treat the document as not having been filed.

3.3A

A party may file by email an application notice in the Preston Combined Court where permitted to do so by PREMA (Preston E-mail Application Service) User Guide and Protocols.

(Paragraph 15.1A of Practice Direction 52 provides for filing by email an appeal notice or application notice in proceedings in the Court of Appeal, Civil Division.)

(Rules 6.3(1)(d) and 6.20(1)(d) permit service by e-mail in accordance with the relevant practice direction. Rule 6.23(6) and paragraph 4 of Practice Direction 6A set out the circumstances in which a party may serve a document by e-mail.)”

 

PART 4: TECHNICAL SPECIFICATIONS OF THE E-MAIL

It is important to note the very detailed technical specifications for an e-mail.

Technical specifications of e-mail

“4.1

The e-mail message must contain the name, telephone number and e-mail address of the sender and should be in plain text or rich text format rather than HTML.

4.2

Correspondence and documents may be sent as either text in the body of the e-mail, or as attachments, except as mentioned in paragraph 4.3.

4.3

Documents required to be in a practice form must be sent in that form as attachments.

4.4

Court forms may be downloaded from Her Majesty’s Courts and Tribunals Service website.

4.5

Attachments must be sent in a format supported by the software used by the specified court to which it is sent. The format or formats which may be used in sending attachments to a particular specified court are listed on Her Majesty’s Courts and Tribunals Service website.

4.6

An attachment which is sent to a specified court in a format not listed on Her Majesty’s Courts and Tribunals Service website as appropriate for that court will be treated as not having been received by the court.

4.7

The length of attachments and total size of e-mail must not exceed the maximum which a particular specified court has indicated that it can accept. This information is listed on Her Majest’’s Courts and Tribunals Service website.

4.8

Where proceedings have been commenced, the subject line of the e-mail must contain the following information –

(1) the case number;

(2) the parties’ names (abbreviated if necessary); and

(3) the date and time of any hearing to which the e-mail relates.”

 

PART 8: PROVISIONS RELATING TO FILING OF DOCUMENTS ELECTRONICALLY

“8.1

Where a party files a document electronically, he must not send a hard copy of that document to the court.

8.2

A document is not filed until the transmission is received by the court, whatever time it is shown to have been sent.

8.3

The time of receipt of a transmission will be recorded electronically on the transmission as it is received.

8.4

If a transmission is received after 4pm –

(1) the transmission will be treated as received; and

(2) any document attached to the transmission will be treated as filed,

on the next day the court office is open.

8.5

A party –

(1) sending an e-mail in accordance with Section I; or

(2) using the online forms service in accordance with Section II,

is responsible for ensuring that the transmission or any document attached to it is filed within any relevant time limits.

8.6

The court will normally reply by e-mail where–

(1) the response is to a message transmitted electronically; and

(2) the sender has provided an e-mail address.

8.7

Parties are advised not to transmit electronically any correspondence or documents of a confidential or sensitive nature, as security cannot be guaranteed.

8.8

If a document transmitted electronically requires urgent attention, the sender should contact the court by telephone.

8.9

A document that is required by a rule or practice direction to be filed at court is not filed when it is sent to the judge by e-mail.”

 DANGER POINTS

Potential problems bristle here:

  • There is a mandatory obligation not to send a hard copy.
  • The document is not filed until it is received by the court (presumably if it is not received it is never filed).
  • It is possible for the litigator to believe it has been sent but it never to be received.
  • An e-mail received after 4 pm is treated as being received the following day.
  • A document required to be filed at court by a rule or practice direction is not filed when it is sent to the judge by e mail. So you need to have a very intimate knowledge of the rules to be certain there is no requirement that they be “filed at court”.
  • I am not certain where this leaves Precedent H. CPR 3.13 states that all parties “must file and exchange budgets as required by the rules”  (However I know that there are first instance decisions where judges have found that Precedent H by e-mail does not comply with the rules).

STATEMENT OF TRUTH

“Statement of truth in documents filed electronically

9

“Where a party wishes to file a document containing a statement of truth electronically, that party should retain the document containing the original signature and file with the court a version of the document satisfying one of the following requirements –

(1) the name of the person who has signed the statement of truth is typed underneath the statement;

(2) the person who has signed the statement of truth has applied a facsimile of his signature to the statement in the document by mechanical means; or

(3) the document that is filed is a scanned version of the document containing the original signature to the statement of truth.”

 

GENERAL GUIDANCE

There is a link to the general guidance.  If you want to read it here. These do not form part of the Rules.

What you can file by email

You are responsible for the security of the information you are sending and therefore you must assess its sensitivity and whether email is a secure enough method of communication.

If you are filing a document by email that contains a statement of truth you are reminded that you should retain the document containing the original signature. The version of the document which is filed by email must satisfy one of the following requirements:

(a) the name of the person who has signed the statement of truth is typed underneath the statement:

(b) the person who has signed the statement of truth has applied a facsimile of his signature to the statement in the document by mechanical means;

(c) the document that is filed is a scanned version of the document containing the signed original statement of truth.

Below is a list of the work that will be accepted by the court if filed by email in accordance with Civil Practice Direction 5B and Family Practice Direction 6A.

Please consider this list carefully before continuing with your email correspondence with the court.

Civil matters only

  • Pre-trial check list (listing questionnaire), provided that no fee is payable by the party filing the check list (N170)
  • Allocation questionnaire, provided that no fee is payable by the party filing the questionnaire; (N150)
  • Particulars of claim (after filing of claim form)
  • Request for judgment in default under rule 12.4(1) or for judgment upon admission under rule 14.4(3), 14.5(6), 14.6(4) or 14.7(5) (N225)
  • Acknowledgement of service (N9)
  • Claimant’s response to notice of admission under rule 14.5(3) or rule 14.7(3); (N225A)
  • Admission, other than one under rule 14.4 (N9C)
  • Claimant’s response to notice under rule 15.10, where defence is that money claimed has been paid (N236)
  • Defence, provided that no counterclaim is made (N9B)
  • Notice of discontinuance, provided that the claimant does not require permission to discontinue, and is not required to attach to the notice the consent of another party (N279)
  • Reply to defence
  • Re-issue/amend process, no hearing (provided that no fee is payable) (N446)
  • Re-issue/amend process, hearing (provided that no fee is payable) (N446)
  • Claimant/Defendant List of Documents (provided documents comply with 4.7 of PD 5B) (N265)
  • Notice of Admission (ROG) (N228)
  • Admission of Liability (unspecified amount) (N226)
  • Amended Defence
  • Part Admission not accepted (N225A)
  • Intention to proceed with states paid defence
  • Request for Interlocutory Judgment (provided that no fee is payable) (N277)
  • Notice of acceptance and request for payment (N243A)
  • Application to claimant to vary judgment (N294)
  • Request for Certificate of Judgment (N293A)
  • Notice by solicitor of acting (N434)
  • Certificate of service (N215)
  • Statement of witness (provided the document is no more than 10 pages and the total size of the email does not exceed 2Mb as set out in 4.7 of PD 5B)
  • Experts Reports
  • Notice of change of address
  • Notice of change of solicitor

Civil and Family matters

  • List of documents (265)
  • Skeleton arguments/case summaries
  • Draft judgments/orders and editorial suggestions for them
  • Any document which the court has specifically directed to be filed by e mail

You may also correspond with the court by email, making general enquiries about the progress of a case, or providing information to the court, for example: –

  • Information for the bailiff
  • Confirmation of appointments
  • Listing information such as dates to avoid
  • Chasing up replies

If you choose to send a document to the court via email please do not send again via fax or post.

What you cannot file by email

  • A party, save for public law proceedings issued by a Local Authority, must not use email to take any step in a claim which requires a fee to be paid. If a party sends a document by email for which a fee is payable upon filing, the document will be treated as not having been filed.
  • Anything in Insolvency or Adoption proceedings
  • Anything that does not meet the requirements of Civil Practice Direction 5B and theFamily Practice Direction 6A.

What the court can send via e-mail

Generally the courts will only use email for limited correspondence including requests for availability dates for hearings, issues concerning reports and general enquiries on specific proceedings. Where technology allows courts will endeavour to send out court orders via email however at this time our systems do not generally allow us to place the court seal on system generated orders and therefore use of this will be limited.

Which address to send e-mails

Email addresses for courts are displayed on Courtfinder.

If your case is being handled at an HM Courts & Tribunals Service Business Centre the relevant email contacts will be communicated to you on issue of proceedings at the centre and should be used whilst proceedings remain with the Business Centre.

Do not use personal email addresses for court staff or judiciary, including legal advisers unless the judge or legal adviser has directed or a local protocol is in place. Please ensure the business email address of the hearing centre concerned is also copied into the correspondence in any event.

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Form and content of emails

When you email the court the subject line of your mail must contain (in the following order): –

  • The claim number
  • The title of the claim (abbreviated if necessary) **
  • The subject matter (e.g. defence)
  • If relating to a hearing the date and time of hearing
  • The judge or legal advisers name, where the correspondence/document is for their attention

**If your email is in relation to a family matter, please refer to the initials only.

Your message should also contain the name, telephone number and email address of the sender. If you email us we will normally send any reply to you by email.

Correspondence and documents may be sent as either text or attachments. Where there is a practice form, it must be sent in that form by attachment.

Attachments must be in one of the following formats and the complete email (including any attachment(s)) must not exceed 10Mb

Document file types

  • Rich Text Format files (.rtf)
  • Plain/Formatted Text files (.txt)
  • Hypertext documents files (.htm)
  • Microsoft Word viewer/reader files (.doc) minimum Word ’97 format
  • Adobe Acrobat files (.pdf) minimum viewer version 4

Spreadsheet file types

  • Hypertext document files (.htm)
  • Delimited files (.csv)

Presentation file types

  • Hypertext document files (.htm)

General and compressed file types

  • Zipped (Compressed) files (.zip, .gz, .tgz, .tar)

Graphics file types

  • Joint Photographic Experts Group (ISO 10918) files (.jpg)

Vector graphics file types

  • Scalable Vector Graphics files (.svg)

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What the court will do with your email

The court will check your email and either respond to your enquiry or, where further action is required, will confirm in due course: –

a) that your document has been accepted, and
b) the date of filing

The date of filing will normally be the date of receipt unless the time of receipt is recorded as after 16.00 in which case the date of filing will be the next day the court office is open.

If your email does not comply with the requirements of the Practice Direction you will be sent a reply stating that it has been rejected and the reasons why.

The court will, where possible, reply to you electronically, although for the present orders of the court will generally be dispatched by post as they are not currently produced in electronic form.

 Points to remember

  • This guide does not replace the Civil Practice Direction 5B and Family Practice Direction 6A.
  • When you file documents by email you must still comply with any rule or Practice Direction requiring the document to be served on any other person.
  • There is nothing in the Practice Direction or FPR 2010 that requires any person to accept service of a document by email.
  • Where a time limit applies it is the parties responsibility to ensure that the document is filed in time.

Warning

  • Email is not a secure medium.  Any message or reply to your message could be intercepted and read by someone else.  Please bear this in mind when deciding whether to send an email
  • If you require any assistance or have an enquiry regarding the email service please contact the appropriate court or Business Centre.

CJS Secure Email Service (CJSM)

If you are a solicitor and have any doubts about the sensitivity of the contents that you intend to email then you should consider signing up to CJS Secure Email (CJSM). This is a service currently provided by MOJ ICT.

CJSM is currently free for civil and family solicitors to sign up to and use, and allows users to securely send and receive information up to and including data that attracts a security marking of restricted. It is not available to the general public.

Emails transmitted via the gsi network and other equivalent secure Government networks, can send and receive from CJSM accounts.

More information about signing up to this service is available atwww.cjsm.cjit.gov.uk/what/index.php

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