SERVICE BY EMAIL WAS NOT GOOD SERVICE: A CLAIMANT NEEDS A SPECIFIC STATEMENT THAT SERVICE WILL BE ACCEPTED: APPLICATION FOR AN EXTENSION OF TIME REFUSED

June 23, 2022 · by · in Service of the claim form, Serving documents

In  Karanja, R (On the Application Of) v University of the West of Scotland [2022] EWHC 1520 (Admin) Michael Ford QC, sitting as a Deputy High Court Judge, found that a claim form had not been served when it was sent to a solicitor’s email address.  The solicitor had not stated they would accept service by email, the wrong email address was used in any event.  The claimant’s application for an extension of time was refused.

 

 

“… that e-mail fell short of a written indication that service could be effected at Ms Thomson’s e-mail for the purpose of paragraph 4.1(1)(a) of PD6A. That provision requires a written indication of willingness to accept service by electronic means; it requires words which state or at least provide a clear indication that service itself can be effected by means of an e-mail address.”

THE CASE

The claimant issued proceedings seeking judicial review of a decision made by the defendant university. Proceedings were lodged and unsealed copies served on the defendant personally.  Proceedings were then issued.  The claimant then sent the sealed proceedings to an email address of one of the defendant’s employees.  It was clear that service of the unsealed documents was not good service. The question for the court was whether service by email was good service and should the court grant an extension of time. The judge held that service was not good service, no extension of time was granted.

THE FACTS RELATING TO ISSUE AND SERVICE

10. The factual background relevant to service of the claim form is not in dispute. The communications between the Claimant’s and Defendant’s solicitors took place exclusively in writing.
    1. On 29 October Mr Sampson, the Claimant’s solicitor and who is also a member of the church which she attends, e-mailed the Defendant at the address legal@uws.ac.uk, copied to the e-mail address of Ms Emma Cuckow, the Defendant’s Head of Legal, to inform them that the Claimant had instructed him to lodge an application for judicial review.
    1. On 11 November Mr Sampson sent a further e-mail to the same two e-mail addresses, chasing up a response and saying that unless a reply was received by 12 November, a claim for judicial review would be lodged. In her reply on the same day, Ms Cuckow said that she had passed the matter to the Defendant’s insurance team and would forward the latest e-mail to them.
    1. On 15 November Mr Sampson sent a further chasing e-mail to Ms Cuckow, saying he still had not received a response. In her reply of the same day, Ms Cuckow said that the matter had been passed to “our insurance colleagues to progress. The best contact point for you going forward would be my colleague Jacqueline Thomson”, whose e-mail address she supplied. (It seems that, in response to an e-mail from Mr Sampson of 16 November, in an e-mail of 18 November Ms Thomson informed Mr Sampson that due process had been followed and the case had been reviewed by the Senate Appeals Committee, implying there were no grounds for challenge.)
    1. On 30 November the Claimant’s solicitor lodged the application for judicial review – the claim form and accompanying documents – in person at the Administrative Court. He left it in the Court’s drop box because the office was closed. An unsealed claim form and the supporting documents were sent to the Defendant at 235 Southwark Bridge Road, the Defendant’s London campus, by special delivery that day.
    1. On 30 November, as explained in his e-mail to the Administrative Court of 12 December, Mr Sampson travelled to Dubai, returning to the office on 10 December.
    1. The sealed judicial review application was issued by the Court on 1 December. A letter of that date from the Court Manager informed the Claimant’s solicitors that the claim had been issued that day and had to be served on the Defendant “within 7 days of the date of this letter and a Certificate of Service lodged with the Court. Failure to comply with this requirement may result in the file in these proceedings being closed”.
    1. According to Mr Sampson’s e-mail to the Court office of 12 December, the letter of 1 December from the Court was not received at his office until 6 December 2021. The e-mail also explained that on his return from Dubai on 10 December, he spoke to someone in the Administrative Court who told him that service of the unsealed claim form was not in compliance with the rules and he should immediately serve the court’s letter of 1 December on the Defendant by e-mail.
    1. At 13:36 on 10 December Mr Sampson sent an e-mail to legal@uws.ac.uk alone – and not to the e-mail address of Jacqueline Thomson as Ms Cuckow had suggested or to the insurers – attaching a copy of the sealed claim form, the accompanying documents, and the letter from the Administrative Court of 1 December. Ms Cuckow responded at 17:29 that evening, saying:
“this matter has been passed to our insurers to deal with and Jacqueline Thomson is the internal contact. I will send your recent correspondence on to her but can you please update your records with the correct e-mail address as set out in my e-mail of the 10th so Ms Thomson can ensure things are dealt with promptly.”
    1. On 12 December Mr Sampson sent an e-mail to the Court office, to which I have already referred, in which he explained why the claim form had not been lodged earlier, enclosing a certificate of service (Form N215) giving the date and time of service as 10 December at 13:28, apologising for the delay in returning the form, explaining he had been away and asking that the delayed filing was accepted by the court. He also contended the claim should be heard in the English courts.
  1. On 7 January the Defendant’s solicitors wrote to the court, copied to Mr Sampson, contending that the service on 10 December was late and that e-mail service was ineffective because it was not in accordance with the rules. The Claimant’s solicitors responded on 28 January 2022, stating it was not just to strike out the claim owing to what was described as a “technical breach”. The Defendant’s solicitors subsequently provided fuller details of why they contended service was invalid and the English courts lacked jurisdiction in a letter of 3 February.

THIS WAS NOT GOOD SERVICE

The judge held that service at the email address the claimant served at  was not good service.  A general indication that correspondence should take place via a certain email address did not represent an acceptance that service could take place there.  Specific consent to service was required.
    1. CPR 54.7 requires that a claim form must be served on the defendant within seven days after the date of issue. It is common ground that this rule requires service of the sealed claim form: see Ideal Shopping Direct Ltd v Mastercard Incorporated [2022] EWCA Civ 14 per Sir Julian Flaux at §§137-8. Service of an unsealed claim form is not a mere procedural irregularity in the proceedings because, until the claim form is served, there are no extant proceedings: see R(Good Law Project) v Secretary of State for Health and Social Care [2021] EWHC 1782 (TCC) at §§44-45. In the subsequent appeal, the Court of Appeal emphasised the importance of valid service of the claim form because of its special function in subjecting a defendant to the jurisdiction of the court: see R(Good Law Project) v Secretary of State for Health and Social Care [2022] 1 WLR 2339 per Carr LJ at §41.
    1. It follows that service of the unsealed claim form to the Southwark campus on 30 November was not valid service, as is not in dispute. There are, therefore, two issues: first, whether there was valid service of the sealed claim form by e-mail on 10 December; and, second, whether there should be an extension of time to that date under CPR 3.1(2)(a).
    1. It is important to note that there was no application under, and at the hearing it was accepted that the Claimant did not seek to place any reliance on, CPR 6.15, by which the court may order that steps taken to bring the claim form to the attention of a defendant by an alternative method not permitted by the rules amounts to good service. Accordingly, it was not submitted that the steps taken to bring the claim form to the attention of the Defendant, for example by the e-mail on 10 December, should be deemed good service under that rule.
    1. Service by e-mail of 10 December? As to first issue, Mr Persey relied exclusively on the e-mail sent by Mr Sampson at 13:36 on 10 December as valid service. He confirmed the Claimant did not rely on any other method or time of service of the sealed claim form.
    1. CPR 6.3(1)(d) permits service of the claim form by fax or “other means of electronic communication in accordance with Practice Direction 6A”. The difficulty Mr Persey faced is Practice Direction (“PD”) 6A itself, paragraphs 4.1 and 4.2 of which provide as follows:
“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.”
    1. The problems for the Claimant are threefold. First, according to PD6A paragraph 4.1(1)(a), before service there must have been a prior indication that the party to be served (or their solicitor) “is willing to accept service by fax or other electronic means“. Mr Persey submits that the Defendant provided the necessary consent because, in her e-mail of 15 November, Emma Cuckow said that “The best contact point for you going forward would be my colleague Jacqueline Thomson”, whose e-mail address was provided.
    1. In my judgment, however, that e-mail fell short of a written indication that service could be effected at Ms Thomson’s e-mail for the purpose of paragraph 4.1(1)(a) of PD6A. That provision requires a written indication of willingness to accept service by electronic means; it requires words which state or at least provide a clear indication that service itself can be effected by means of an e-mail address. Reinforcing this view in the context of e-mail service is paragraph 4.1(2)(b), which provides that a solicitor’s e-mail address may only be used for service if it is stated explicitly that the e-mail address may be used for that purpose (so that the provision of an e-mail address alone is not sufficient). It is also supported by paragraph 4.2 which requires a prior request to see whether there are any limitations on the “agreement” to accept service by electronic means. These provisions seem to contemplate a specific indication or agreement that an e-mail address can be used for service, and not simply an indication of where future communications should be directed.[1] The general statement in the e-mail of 15 November that future communications should be sent to Ms Thomson was not, in my view, a sufficient indication that the Defendant was willing to accept service by means of Ms Thomson’s e-mail address.
    1. The second difficulty is that the e-mail of 10 December, upon which Mr Persey relies, was not in fact sent to Ms Thomson’s e-mail address at all; instead, it was sent to legal@uws.ac.uk. Mr Persey seeks to overcome this difficulty by arguing that service was perfected by Ms Cuckow, who informed Mr Sampson in her reply to his e-mail of 10 December that she would – “I will” – send his “most recent correspondence on to [Ms Thomson]”. The result, on this submission, was that service was not done by Mr Sampson but was effected or completed by Ms Cuckow.
    1. It is not difficult to see how this analysis could cause problems with the time limits in the CPR because whether Ms Cuckow in fact forwarded the e-mail to Ms Thomson, and the time and date on which this took place, was not known Mr Sampson. Nor was I shown evidence confirming that Ms Cuckow did in fact forward the e-mail and the sealed claim form to Ms Thomson on 10 December or subsequently, so that the fact and time of actual service remains unknown, though neither party addressed me on this point. In Good Law Project, Carr LJ stated at §24 that it was for “the claimant, and not the court, to effect service of the claim form”, referring to PD54A, and in that case sending a copy of the sealed claim form to the e-mail addresses of three individuals within the Government Legal Department was invalid service because the sealed form was not sent to the specific e-mail address given for service: see Carr LJ at §12(i)(iii) and (x) and §61. I doubt the result would have been different if one of those individuals had happened to forward the e-mail on to the correct address. For all these reasons, I consider that even if Ms Thomson’s e-mail address was a valid address for service, there was a failure to serve the sealed claim form by the Claimant at that address for the purpose of PD6A paragraph 4. Service on another e-mail address was not sufficient, despite the subsequent indication that the correspondence would be forwarded.
    1. The third problem for the Claimant is paragraph 4.2 of PD6A, and the requirement of a prior request to ascertain whether are any limitations on the other party’s agreement to accept service by electronic means. Here, Mr Persey argues by confirming safe receipt of the claim form in her e-mail of 10 December, Ms Cuckow “implicitly” confirmed there were no limitations on the subsequent service which she, it is presumed, subsequently effected on Ms Thomson. I do not accept that argument. Paragraph 4.2 requires an express prior question about any limitations on the acceptance of service, such as the format of documents. All Ms Cuckow did was to say she would pass the e-mail onto Ms Thomson. She was not asked anything in advance about limitations on what would be accepted as e-mail service.
    1. It follows, in my judgement, that the sealed claim form was not validly served on 10 December (or on whatever date Mr Sampson’s e-mail of 10 December was forwarded on by Ms Cuckow to Ms Thomson). Nor, it follows from the case before me, was it ever validly served: Mr Persey accepted that if the e-mail of 10 December was not valid service, there was no valid service.

SHOULD THE COURT GRANT AN EXTENSION OF TIME

The judge considered, and refused, the claimant’s application for an extension of time.

    1. Extension of Time? Assuming I am wrong, however, and there was valid service on 10 December – two days later than required under CPR 54.7 – should time be extended to that date under CPR 3.1(2)(a)?
    1. The Court of Appeal in Good Law Project decided that the requirements in CPR 7.6 for a retrospective extension of time to serve a Part 7 or Part 8 claim form apply equally to extensions of time for service of a judicial review claim form: see Carr LJ at §§53, 80.[2] I do not accept Mr Persey’s submission that the strict approach taken in Good Law Project is restricted to public procurement challenges, judicial review claims where proceedings are lodged near to the end of the three-month time limit, or claims where a claimant is not directly affected by a decision. The first issue in the appeal in Good Law Project was whether principles in 7.6 applied to extensions of time for service of judicial review claim forms and not only those involving public procurement: see §6. The clear and unequivocal answer of Carr LJ at §80, with which Phillips LJ and Underhill LJ agreed, is that the principles in CPR 7.6 govern the discretion to extend time for service of all judicial review claim forms because of the universal requirement of promptness in such challenges. Even if this applies with greater force in a procurement challenge, with its tighter deadlines, the judgment is not restricted to such challenges. Carr LJ underlined the same point in §85 of her judgment:
“As for extensions of time for service of a judicial review claim form, whilst CPR 7.6 does not directly apply, its principles are to be followed on an application to extend under CPR 3.1(2)(a). Thus, unless a claimant has taken all reasonable steps to comply with CPR 54.7 but has been unable to do so, time for service should not be extended”.
That is a clear statement of general application to judicial review claims.
    1. In support of his submission, Mr Persey also relied on the decision of the Supreme Court in Public Prosecutors Office of the Athens Court of Appeal v O’Connor [2022] UKSC 4 where it was held that the fault of a legal representative in failing to give notice of leave to appeal against an extradition order in time was not a failure to be attributed to the individual facing extradition. He argued the same should apply here because the decision of the Defendant also had a significant interference with the Claimant’s rights. But the statutory provision there, section 26(5) of the Extradition Act 2003 (cited by Lord Stephens at §2), operated in a very different context, and fell to be interpreted in accordance with its particular wording, purpose and legislative history. That statutory context led the Supreme Court to depart from the surrogacy principle, by which the fault of a legal representative is attributed to the client: Lord Stephens at §§48-52. I do not consider it assists on the correct approach to CPR 7.6 or CPR 3.1(2)(a). In Good Law Project, Carr LJ rejected an argument that Good Law Project was not fixed with the acts and omissions of its solicitors, albeit in the context of addressing the submission based on CPR 6.15: see §61. That assumption, I consider, equally informed her conclusion that Good Law Project had not taken all reasonable steps to comply with CPR 54.7 for the purpose of an extension of time under CPR 3.1(2)(a): see Carr LJ at §80. I was not taken to any authority which suggested that the surrogacy principle does not apply to CPR 7.6.
    1. It follows that the principles in CPR 7.6 apply here by analogy. They require that the claimant (i) has taken all reasonable steps to comply with service within the relevant time period but has been unable to do so (7.6(3)(b)) and (ii) has acted promptly in making the application (7.6(3)(c)).
    1. For the Claimant, Mr Persey relies on three factors to show that the Claimant took all reasonable efforts to effect service on time but was unable to do so: difficulties of solicitors operating during the pandemic; Mr Sampson was out of the country in Dubai; and the letter from the court did not arrive until 6 December, close to the expiry of the time for service.
    1. The principles in relation to extensions of time under CPR 7.6, which apply by analogy to judicial review claims, are summarised by Nicklin J in Piepenbrock v Associated Newspapers Limited and others [2020] EWHC 1708 (QB) at §§41-42, to which Ms Thelen referred me. They require a court to consider what steps were taken to serve the claim form during the period of its validity and require a full explanation as to why the claim form was not served in time.
    1. I consider the matters raised by Mr Persey are insufficient to demonstrate that Mr Sampson took “all reasonable steps” to serve the sealed claim form within the seven-day period in CPR 54.7. The reference to difficulties in operating during the pandemic does not show what steps were taken to serve the claim form and there is no full explanation why they prevented timely service. While Mr Sampson was away in Dubai between 30 November and 10 December, the failure to put in place arrangements for dealing with urgent correspondence meant that no steps were taken to serve the form in that time. Even accepting that the letter from the court did not arrive until 6 December, had such arrangements been in place that still left time to ask the Defendant if it would accept service electronically or to serve the sealed claim form personally. There is, in fact, no real explanation of any steps taken to serve the claim form during its period of validity, between 1 December and the date for service (8 December). As Ms Thelen pointed out by reference to Mr Sampson’s e-mail of 12 December, it seems he simply assumed that he had complied with the rules for service before he left for Dubai.
    1. This means there can be no assessment of whether the steps taken by Mr Sampson were objectively reasonable because no such steps were taken. But, so far as relevant, I consider it cannot have been objectively reasonable to assume the rules on service had been met, not to be familiar with the rules on service and not to have arrangements in place to deal with urgent correspondence while Mr Sampson was in Dubai. The Claimant has therefore failed to show that all reasonable steps were taken to serve the claim form in the period of its validity.
    1. In addition, I consider that the Claimant’s solicitors did not act “promptly” in making the application to extend time for the purpose of the applicable requirement in CPR 7.6(3)(c). The Defendant’s solicitors drew attention to the unauthorised and/or late service of the claim form in their letter of 7 January 2022. They explained the problems in greater detail in a letter to the court and Mr Sampson dated 3 February, referring to Good Law Project and CPR 7.6(3) and pointing out that the Claimant had failed to make any application to extend time for service of the claim form. Yet no application to extend time was made until an application notice dated 11 May 2022 was presented to the court, and there is no explanation for the delay in making that application.
    1. It follows that the application to extend time under CPR 3.1(2)(a) also fails.
  1. I appreciate this result will no doubt appear harsh to the Claimant in circumstance where the late service of the claim form was no fault of hers. As Mr Persey pointed out, a claim in negligence against her solicitors is of no use to her. But I consider the result follows from the Court of Appeal deciding in Good Law Project that the appropriate rules to be applied to extensions of time for serving judicial review claim forms are those in CPR 7.6 and not, as O’Farrell J had decided at first instance, the more generous guidelines set out in Denton v TH White [2014] 1 WLR 3926 (which, following R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472, ordinarily govern applications for extension of time under CPR 3.1(2)(a)). The apparent harshness of this approach is justified by the need for strict adherence to the rules on service and limitation; it may be mitigated, in other cases, by means of an application under CPR 6.15.

 

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