Can a claim form be validly served by email?

| Author: Secretariat | Filed under: General News
Can a claim form be validly served by email?

In the recent case of McAlpine Ltd v Richardson Roofing Co Ltd [2022] EWHC 982 the Technology & Construction Court had to decide whether a claim had been validly served where the claimant had sent its particulars of claim to the defendant by email. The Court took a strict approach to the rules in making its decision highlighting the need to ensure that a valid method of service is used.

In this case a Notice of Change of Legal Representative (notice of acting) had been provided by the defendant on which the defendant had detailed the solicitor’s email address. The question before the court was whether this was sufficient to demonstrate that the defendant had authorised acceptance of service by email.

4.1 of Practice Direction 6A of the Civil Procedure Rules (“CPR”) deals with service by fax or other electronic means and provides:-

“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).”

The court stated that the rules in relation to service of a claim form or other document have to be clear and certain. The claimant argued that the notice of acting was a formal document which meant that the court should consider it when deciding whether there had been a written indication of acceptance of service by email. However, whilst the court accepted that the notice of acting was a court form and that it contained an email address, it also included a fax number and telephone number for the solicitors. It was not a form concerning service like an Acknowledgment of Service and could not be compared to such but instead was a document providing details of how to contact the solicitor who was now instructed by the defendant. The court held that a willingness to accept service by electronic means should be clearly expressed in writing and therefore found that the particulars of claim had not been validly served.

Whilst email is widely used method of communication, until or unless the CPR are amended, a party should only serve a claim or other document by email or other electronic means if they have obtained express written agreement from the other party to accept service by that method in advance in accordance with the rules set out above.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

Source:  Boyes Turner

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