Service by email – should the Civil Procedure Rules be changed?

In 1971, over 47 years ago, a Mr Ray Tomlinson, computer engineer, sent the very first email. This was a test message to himself, which he sent to a computer that was placed right next to the computer he had used to send his message.

In accordance with Radicati Group statistics, in 2018 more than 269 billion email messages were sent every single day; that equated to approximately 72 emails for every one of the estimated 3.7 billion email users in the world. It is now estimated that the average office worker receives 121 emails per day and sends out 40 emails per day. With 86 percent of professionals preferring email as their favorite mode of communication, and the Courts accepting documents by email (albeit sometimes sized limited), why does the Civil Procedure Rules therefore, still not reflect modern day technology when it comes to the service of Court documents?

Pursuant to rules 6.3 and 6.20 of the Civil Procedure Rules it states that methods of service include personal service, leaving a document at the correct address, first class post, document exchange, or any other service which provides for delivery on the next business day:

6.3 METHODS OF SERVICE – II SERVICE OF THE CLAIM FORM IN THE JURISDICTION OR IN SPECIFIED CIRCUMSTANCES WITHIN THE EEA

(1) A claim form may (subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties) be served by any of the following methods –

(a) Personal service in accordance with rule 6.5;

(b) First class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;

(c) Leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;

(d) Fax or other means of electronic communication in accordance with Practice Direction 6A; or

(e) Any method authorised by the court under rule 6.15.

(2) A company may be served –

(a) By any method permitted under this Part; or

(b) By any of the methods of service permitted under the Companies Act 20062.

(3) A limited liability partnership may be served –

(a) By any method permitted under this Part; or

(b) By any of the methods of service permitted under the Companies Act 20063 as applied with modification by regulations made under the Limited Liability Partnerships Act 20004.

6.20 METHODS OF SERVICE – III SERVICE OF DOCUMENTS OTHER THAN THE CLAIM FORM IN THE UNITED KINGDOM OR IN SPECIFIED CIRCUMSTANCES WITHIN THE EEA

(1) Subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties, a document may be served by any of the following methods –

(a) Personal service, in accordance with rule 6.22;

(b) First class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;

(c) Leaving it at a place specified in rule 6.23;

(d) Fax or other means of electronic communication in accordance with Practice Direction 6A; or

(e) Any method authorised by the court under rule 6.27.

(2) A company may be served –

(a) By any method permitted under this Part; or

(b) By any of the methods of service permitted under the Companies Act 2006.

(3) A limited liability partnership may be served –

(a) By any method permitted under this Part; or

(b) By any of the methods of service permitted under the Companies Act 2006 as applied with modification by regulations made under the Limited Liability Partnerships Act 2000.

 

Service by fax or email is only permitted, in accordance with paragraph 4.1 of Practice Direction 6A of the Civil Procedure Rules, if agreement is reached between both parties to accept service by electronic means, whether that be by email or by fax:

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

The Courts appear reluctant to accept service by email. In Barton v Wright Hassall LLP [2018] UKSC 12 the Supreme Court held that email service was not effective, despite the Claimant being a litigant in person. The Claimant served a claim form on the Defendant’s Solicitors by way of email without seeking agreement from the Defendant’s Solicitors beforehand. The Court held that service was defective stating that it is reasonable to expect a litigant in person to familiarise themselves with the rules which apply to any procedural step they are about to take, including the rules on service. The Claimant’s claim was struck out by the Supreme Court, despite the Defendant’s Solicitors confirming that the email, with the Court documents attached, had been received.

 

The Courts are clearly taking a harsh stance on email service, because email service is not readily permitted in the Civil Procedure Rules, without prior agreement. If emails were added into rule 6.20 of the Civil Procedure Rules then the Courts would be following modern day culture, and society’s preferred mode of communication, which would benefit not only professionals, as stated above, but also the ever-increasing number of litigants in person.

 

The Courts gave us a glimmer of hope just one day prior to Barton v Wright Hassall LLP, in the case of Knight v Goulandris [2018] EWCA Civ 237 when a Party Award was deemed validly served by email in accordance with section 15(1A) to (1C) of the Party Wall etc Act 1996. However, this was short lived following the decision of Barton v Wright Hassall LLP.

 

There are multiple benefits to emails and that of email service, which only seem to encompass the overriding objective under rule 1.1 of the Civil Procedure Rules, and yet, the Courts have not reflected this in the current procedural code. Emails are fast, free, environmentally friendly and can be sent to multiple senders, which saves expense and helps to deal with claims in a timelier and proportionate manner, satisfying the overriding objective, whilst aiding and enabling the Courts to deal with cases justly. Furthermore, given the never-ending Data Protection Rules, emails are also one of the most secure ways of sending information to third parties, as they can be encrypted, password protected, and service can be evidenced by way of delivery receipts and read receipts.

 

Whilst post and DX correspondence should reach the recipient, how many times have we faced arguments with the opposition that documents have not been sent or received? Sometimes only finding this out days or weeks after the service date. The only guaranteed way to prove that post or DX is sent and received is to send them recorded, which is costly; a Royal Mail Signed For® 1st Class costing anywhere between £1.90 and £3.92 for a letter (dependent on weight, and up to 750 grams), and a DX Tracked Mail label costing £4.50 plus VAT per label; in comparison, to an email which can be tracked by a simple free delivery receipt.

 

In summary, the Civil Procedure Rules are outdated and need to be brought forwards to contemporary standards. Email service needs to be added to the Civil Procedure Rules.

 

 

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