Are you being served? Service by email

Briefing

Since the introduction of the rules on service by email in CPR 6APD.4, the use of email as an instantaneous means of communication (for better or worse) has grown exponentially; email is now a ubiquitous part of everyday life.

The recent case of Woodward and anor v Phoenix Healthcare Distribution Limited [2019] EWCA Civ 985 has once again brought to the fore the perils and pitfalls of service of a claim form by email.

The question is, therefore, is it now time to bring the Civil Procedure Rules up to date for the modern age, to fully embrace and endorse service by email as an effective alternative method of service?

Where we are now? The orthodox view

Under the current rules, service of documents by email is only permitted in certain circumstances, as set out in CPR 6APD.4, which makes clear that the party who is to be served must consent to service by such means.

The leading case on this increasingly problematic issue is Barton v Wright Hassell LLP [2018] UKSC 12, in which the Supreme Court held by a majority of 3 to 2 (Lady Hale and Lord Briggs dissenting) to dismiss the appeal.

The panel ruled that Mr Barton had not effectively served the claim form since he had not complied with the necessary procedural rules in respect of email service (he did not confirm with the Defendant's solicitors beforehand that they were instructed to accept service by email).

Moreover, having attempted to serve the claim form himself at the very end of the limitation period (and due to service being ineffective), his claim became statute-barred.

Woodward is the most recent case to consider the issue of service of a claim form via email. In that case, a unanimous Court of Appeal followed the majority decision in Barton and dismissed the appeal.

The future – a more relaxed approach?

Lord Briggs' comments on service by email in Barton provide much food for thought. In particular, he opined that Mr Barton's attempt to serve the claim form and particulars of claim by email did fully achieve all of the underlying purposes of the rules about service by email.

He also found sympathy with Mr Barton's erroneous but understandable belief that the solicitors whom he had been corresponding with were impliedly authorised to accept service by email, as well as the fact that Mr Barton was "in extremely good company" in thinking that solicitors who included an email address on their headed paper were authorised to accept service by such a method.

Lord Briggs and Lord Sumption both observed that the Civil Procedure Rule Committee (CPRC) might find time to consider whether the current provisions in Part 6, including those with respect to service by email, were still fit for purpose as well as being sufficiently clear to all court users (including litigants in person).

The implications of the Barton judgment were considered at the CPRC meeting on 2 March 2018. However, the Committee decided that the issue could not be addressed on the basis of one judgment (which, of itself, was not a unanimous decision).

Rather, if the rules on service were to be reconsidered, a full consultation would be required. There does not seem to be any sign on the horizon that such a consultation is contemplated.

Service by email – the final word(s)

Since communications are almost universally conducted via email these days, there would seem to be some weight to the argument that service by email should be considered as effective service if a solicitor is on record as representing a party.

This issue appears ripe for reconsideration and clarification not least since there clearly appears to be judicial appetite for it (per Lord Briggs and Lord Sumption in Barton).

Indeed, as Lord Briggs commented, he found it troubling that this was the second time in recent years that the Supreme Court had been called upon to decide upon this procedural issue.

However, any reconsideration or amendments to the current "opt in" rules would need to grapple with some of the more practical challenges of service by email, such as:

Who to serve – would service be valid, for example, if sent to any individual's email address who habitually appears on communications in relation to a matter, or does a specific individual need to be nominated to accept service?
Notification of service – how would this be done? Should an alert via CE-file or a group email account be set up, for example, to notify all relevant individuals working on a matter that a communication has been received?
Risk management – law firms would need to undertake a risk assessment and put in place suitable policies to ensure that any documents served via email are dealt with as appropriate.
Technical game playing – there is no duty to advise or alert the other side to an error in service, even when it is known that the limitation period is about to expire (a point reiterated in Barton and Woodward). However, if the "opt in" rule for email service were to be scrapped, this may lead to fewer allegations of underhand tactics on the part of opponents seeking to raise a limitation defence.

There is currently no consistency of approach and it is up to an individual law firm as to whether or not, as a matter of policy, it will accept service by email.

Therefore, it seems that unless or until the CPRC takes up the challenge of consulting on the issue, lawyers and their clients will continue to experience the same issues with opponents arguing that service by email is not effective service.

Consequently, it would still be best practice to confirm with the recipient as to whether or not it consents to service by email and, in any event, to ensure documents are validly served in accordance with one of the other methods of service prescribed in CPR 6.