We have seen a large number of cases where parties have come to grief by attempting to serve by email in circumstances where the other party has not consented.  There is a petition to amend the rules.

PRACTICE DIRECTION 6A

This Practice Direction has a specific section on service by electronic means.  This provides, quite specifically, that a party being served has to “contract in”

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.

4.2  Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).

4.3  Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy.

The petition: Consider implementing electronic service as a primary service method in civil proceedings

Details of how to sign the petition can be found here. 

“This petition is made by me, Tobias Haynes, in my capacity as Chair of Birmingham Law Society’s Dispute Resolution Committee.

My committee believes that the primary methods of service under the current rules are cumbersome, inefficient and costly. Most importantly, they also present an opportunity for un-cooperative and opportunistic behaviour, particularly when deadlines are approaching, which results in significant (and unnecessary) satellite litigation.

The issue of service by email recently came before the Supreme Court in the case of Barton v Wright Hassall LLP [2018] UKSC 12. The case involved the Supreme Court having to consider whether it should retrospectively validate service in circumstances where a litigant in person purported to have served a claim by email, despite not having met the requisite procedural requirements. The Supreme Court ultimately refused to retrospectively validate service, which brought an end to the claim. In Barton, Lord Briggs made the following observations:

“29… Now that issue and filing is required to be carried out online, by legally represented parties in the Business and Property Courts in London, as the first stage in eventually extending this as the mandatory method for all civil proceedings, it may be questioned for how long these constraints upon service upon solicitors by email will continue to serve a useful purpose, but any relaxation of them is of course a matter for the Civil Procedure Rule Committee…

44. It troubles me that the meaning and effect of CPR 6.15 has now been considered by this court, which does not lightly embark upon procedural questions, twice in recent years and that, on this occasion, its meaning has divided the court. While recognising the pressures upon its time during a period of major procedural reform, I hope that the Rule Committee might be able to find time to satisfy itself that this rule, and the provisions in the PD about service by email, still satisfy current requirements, in the context of giving effect to the Overriding Objective, and do so with sufficient clarity“.

Lord Sumption concurred that the matter ought to be considered by the Civil Procedure Rule Committee.

The members of my committee have experience in both claimant and defendant litigation, and accordingly have been able to consider these matters objectively and have devised what we consider are reasonable and pragmatic solutions.

We consider that the current restraints on service by email are unnecessary, outdated and present an opportunity for tactical game-playing. In our view it is time to change that. The Barton case is an example of the injustice that can occur under the current system. With the advent of coronavirus (COVID-19), electronic working is increasingly the norm. The pandemic has, in our view, accelerated a shift towards paperless case management.  As such, email communication is increasingly becoming the default.  Further, the courts have also moved to a paperless system in the form of CE filing, MCOL and with more on the horizon as envisaged by HMCTS’ modernisation programme. It seems peculiar (to say the least) that claims can be filed electronically, received back electronically but then have to be printed out to be served.  There are, of course, also environmental advantages in moving away from paper usage. We believe that now is the appropriate time to make electronic service a mandatory method of service under the Civil Procedure Rules (‘CPR’), however we only propose this in respect of service within the jurisdiction of England & Wales.

We propose that service by email on a solicitor shall be valid when documentation is sent to:

1) A solicitor’s e-mail address set out on a statement of case, answer to a claim or any other document filed with the court;

2) Any email address for the firm which is published by the Law Society or Solicitors Regulation Authority;

3) Any email address which is set out on the letterhead of the firm; or

4) Any other email address which the solicitor explicitly identifies for service (such as the individual email address of a solicitor, as opposed to their firm).

We appreciate that the position is somewhat more challenging when it comes to litigants in person (‘LiPs’), and that the overarching consideration must be on fairness to them. We propose that service by email on a non-solicitor shall be valid when documentation is sent to:

1) An e-mail address set out on a statement of case, answer to a claim or any other document filed with the court by the party to be served;

2) An email address which is set out on the letterhead of the party to be served; or

3) An email address identified by the party to be served.

We are also clear that it should not be possible to exclude service by email, such as through a disclaimer on a letterhead or in email signatures. Further, we consider that it should be made explicitly clear that where a party expressly notifies a change of email address, that the former email address may no longer be relied upon for service.

We consider that the stringent requirements which are set out at paragraph 4.3(b) of PD 6A CPR are no longer necessary. Modern email systems typically alert the sending party when files are too large and other steps can be taken for parties to be satisfied of delivery of a message (e.g. read and delivery receipts).

As with other methods of service like post etc. there is of course a difference between ‘deemed service’ and ‘actual service’.  Whilst we acknowledge that there is an inevitable risk that emails may not be received or “actually served” (much like how a letter may never be received), we do not consider that this warrants precluding the methods of service being updated to match modern practice. We consider that the courts have sufficient powers to tackle such difficulties justly on a case-by-case basis (such as through the setting aside of default judgments etc.).”