Disputes Quick Read: Service by email – are the rules any clearer?

Quick read

Since the pandemic, service of court documents by email has become an increasingly common practice among solicitors, but the procedural rules have been slow to keep pace with developing practice. This has led to courts having to decide whether service has been effected validly by email where the parties have agreed that as a method of service.

In R (on the application of Tax Returned Ltd and others) v Commissioners for His Majesty's Revenue and Customs [2022] EWHC 2515 (Admin) (which we reported on here) the court decided that an agreement between the parties for service by email under Practice Direction 6A was valid only if the recipient had nominated a single email address for service.

Later, in Sconnect Co Ltd [2022] EWHC 3295 (CH), the court distinguished Tax Returned, recognising that there were practical issues in forcing parties to use only one address as that could frustrate service, causing delay and increasing costs.

The Civil Procedure Rule Committee (CPRC) has now stepped in to provide further guidance on service by email. The question however is whether the new guidance addresses the current ambiguities in what will constitute a valid agreement for service by email.

What does the CPRC guidance say?

The CPRC has added the following wording to Practice Direction 6A.4.1(3):

"Where a party has indicated that service by email must be effected by sending a document to multiple email addresses, the document may be served by sending it to any 2 of the email addresses identified".

This new wording is effective from 6 April 2023.

Does this help?

The new wording in Practice Direction 6A.4.1(3) leaves it open to a party effecting service of a document to exercise a discretion in deciding the email addresses on which to serve the materials where the other side has nominated more than two email addresses. The provision does not therefore provide absolute certainty as to the emails on which service will be effected.

There may be good reasons why a party or a law firm may need to ask that a document be served on more than two of its lawyers and it seems rather odd that the serving party should be able to choose to effect service on only two emails where more than two have been nominated. As it stands, a third lawyer nominated to receive a document could be missed off the service email and that would not affect the validity of the service.

The obvious way to have certainty as to who will receive service of documents would be to provide only two email addresses, but there may be cases where that is not practical or desirable.

As we have previously suggested, a way around the restriction on the number of email addresses would be to set up a group email account but again this may not be available to all parties and can indeed have its own issues even with IT assistance.

We understand that there may be further consultation on the revised provision, and we will update you with any new developments.