In this technological age lawyers have increasingly used email to communicate and to serve court documents. During the pandemic, email became the main method of communication and service given that so many business premises were closed and employers and employees were working from home. Service by email has the further advantage of saving time, cost and paper; but when is service by email valid?
Service by email
Rules 6.3(1)(d) and 6.20(1)(d) of the Civil Procedural Rules (“CPR”) allow service by email of claim forms and other documents; these Rules are supplemented by Practice Direction (“PD”) 6A. In accordance with PD 6A.4, in order for service by email to be valid, the recipient party must have previously indicated in writing to the party serving that they are willing to accept service by electronic means and provided a fax number, email address or other electronic identification to which it must be sent. The PD also requires the sender to ask if there are any restrictions on the size of documents that can be received by email.
In the case of Integral Petroleum SA v SCU-Finanz AG  EWHC 702 (Comm) the question of the validity of service by email was raised. Here, the Defendant argued that service of the Particulars of Claim by email was invalid as it had not elected email as a permitted method of service in accordance with CPR PD 6A.4. The Court agreed but used its power in accordance with CPR 3.10 to rectify the procedural error so that the Claimant’s claim could continue. The Court interpreted CPR 3.10 widely and took a relaxed view on non-compliance with PD 6A.4.
However, this seemingly relaxed approach to service by email has been called into question by a recent decision of Mr Justice Waksman in the case of Sir Robert McAlpine Ltd v Richardson Roofing Co Ltd  EWHC 982 (TCC). The case related to a construction dispute where the particulars of claim had been sent by email to the Defendant’s solicitors (“D”). D asserted this was not proper service and a week later the Claimant solicitors (“C”) served another copy of the particulars of claim personally. C sought a declaration that the original service was valid or, alternatively, that it should be granted an extension of time so that the service of the particulars by hand constituted good service. C argued that email service was good service because D had filed a Notice of Acting which included an email address. However, Waksman J found that there was no explicit indication in writing that D would accept service by email and that putting the email address in the notice of acting without more was sufficient as this document was not a direct response to the claim. The Judge also held that C was not entitled to rely on and assume that the service of a previous stay application by email meant that later documents could be served by email. Waksman J interpreted PD 6A.4 narrowly, expressing the need for clear agreement in writing for service by electronic means to be valid and summarised the need explicitly at paragraph 25 –
I am not going to put a gloss on the word "indicate", except that it seems to me - as I have already indicated - it should be explicit and it should be clear.
Given the history of service in this matter and that email addresses were given on documents that had been filed at court, it seems a harsh decision particularly given the preceding Integral Petroleum case. Email use is now widespread and almost the default method of communicating today, which was not the case when the rules on service by email were first introduced. As such, the CPR may need revision in this area to make it easier for service by email to be valid without prior communications on this issue being required and to prevent Defendants from taking technical points on service given how commonplace email is today. Until that time, the correct position continues to be that a party should not serve by email unless the recipient expressly indicates in writing they are willing to receive it by this method.
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