AN ORDER FOR SERVICE BY EMAIL MADE: THERE IS GOOD REASON TO DO SO

July 26, 2023 · by · in Serving documents

In Cohen & Ors v O’Leary & Ors (Re Insolvency Act 1986) [2023] EWHC 1939 (Ch) Louise Hutton KC (sitting as a Deputy Judge of the High Court), made an order that a defendant could be served by email.

“As Mr O’Leary is able to receive documents by email and has indicated that he is willing to do so, directing that documents may be served on him in that way will further the overriding objective by increasing the likelihood of them coming to his attention reliably and quickly.”

THE CASE

The applicants were the holders of a judgment debt owed by Mr O’Leary. Mr O’Leary had subsequently applied for his own bankruptcy, he will be discharged from bankruptcy in July 2023.    The applicants sought an order that  “Bacci -v- Green” relief be given after the discharge. This would allow the applicants to have access to Mr O’Leary’s pension funds.  The application was adjourned. Mr O’Leary was represented by direct access counsel and the applicants applied for an order that it be possible to serve Mr O’Leary by email.

 

THE JUDGMENT ON THIS ISSUE

    1. Finally, Mr Pourghadiri applied at the hearing for permission pursuant to CPR 6.27 for his instructing solicitors to serve Mr O’Leary by an alternative method, namely by email to the email address which Mr O’Leary has on occasion used to communicate with them. He relied in support of that application on the evidence filed for this hearing, which described difficulties encountered in serving documents on Mr O’Leary. The background to the application for permission to serve Mr O’Leary by email is that Mr O’Leary has not instructed solicitors to act for him on this application (Mr Hill was instructed to appear at this hearing on a direct access basis).
    1. When the application was made, Mr Pourghadiri expressly acknowledged that he was not seeking an order for alternative service of the order containing Mr O’Leary’s undertaking for the purpose of contempt proceedings. Accordingly, if there were any question of contempt proceedings, personal service would not have been dispensed with for the purpose of CPR 81.4 by the order for alternative service sought at this hearing.
    1. The application for permission to serve by email was (on instructions) not opposed by Mr Hill for Mr O’Leary, although he relayed his client’s objection to what was described as “aggressive” correspondence sent by email, typically on a Friday afternoon.
    1. In those circumstances, I indicated I would make the order sought. My reasons are as follows:
(a) The Second Witness Statement of Mr Hirst (“Hirst 2”), filed on behalf of the Applicants for this hearing, provides evidence of difficulties the Applicants had encountered in the past in serving documents on Mr O’Leary.
(b) Hirst 2 also provides evidence that emails sent by the Applicants’ solicitors to Mr O’Leary on 28 April 2023 and 3 May 2023 led to a letter in response from Mr O’Leary, sent by him by email on 4 May 2023, referring to the Applicants’ solicitors’ letters of 28 April and 3 May 2023 “sent to me by email“.
(c) Taken together with the fact that, on instructions from Mr O’Leary, Mr Hill did not oppose the application, I am therefore satisfied that there is no reason to believe that Mr O’Leary has any difficulty in receiving documents by email rather than by post or hand delivery.
(d) Service using an email address is not unusual. It is expressly provided for by CPR 6.20(d) and Practice Direction 6A which provides that:
“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 e-mail addresses or other electronic identification to which it must be sent”.
(e) As Mr O’Leary is able to receive documents by email and has indicated that he is willing to do so, directing that documents may be served on him in that way will further the overriding objective by increasing the likelihood of them coming to his attention reliably and quickly.
  1. It would have been possible for the parties to agree, pursuant to CPR 6.20 and Practice Direction 6A, that documents could be served on Mr O’Leary by email. That does not make it inappropriate in the circumstances of this case to grant the application for permission to serve by email pursuant to CPR 6.27 given that I am satisfied for the reasons set out above, and on the basis of the evidence filed for this hearing, that there is “good reason” to do so.
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