Well Served?

Article by Richard Harrison and Fiona Bennett

The main effect of amendments to the Practice Direction to Part 6 of the Civil Procedure Rules (which took effect on 31 July 2003) is to ease the restrictions on service by e-mail. Previously, the CPR only provided for service by e-mail where both parties had legal representation, and the legal representative had to have previously indicated his willingness to accept service by e-mail. Uncertainty over what amounted to such willingness made this an unattractive method of service.

Part 6 now provides for the following:

• service by e-mail applies to parties with and without legal representation.
• The party to be served must have previously indicated in writing to the serving party that he is willing to accept service by electronic means. Where an email address or electronic identification is set out on a statement of case or a response to a Claim Form filed with the court, this is deemed to be sufficient indication of such willingness.
• The party to be served must have provided an e-mail address or electronic identification to which documents should be sent.
• Clarification should be sought from the party to be served whether there are any limitations to their agreement to accept service by such means including the format in which documents are to be sent and the maximum size of attachments that may be received.
• There is no longer any requirement for a party serving a document by electronic means to send a hard copy by post or document exchange as had previously been the case.

These amendments have clarified the position for the serving party on how service by e-mail can be effected and will surely be welcomed by many who use email on a regular basis. There is little doubt that e-mail can be a swift and efficient method of sending documents, particularly if they are lengthy. However, for those who do intend to use e-mail as a form of service, consideration should be given to the potential pitfalls:

• A recipient of an e-mail document may argue that they never received it. This problem can be fairly easily resolved by ensuring that the e-mail sent contains an automatic "delivered" receipt.
• A serving party should also remember that a document served by electronic methods, other than fax, will not be deemed to be served until the second day after the day on which it was transmitted. Therefore, despite the instantaneous transmission of documents, service by e-mail could have its disadvantages where deadlines for service are tight.

The disadvantages of service by e-mail are, however, more likely to be most keenly felt by the parties being served and proper procedures should be put in place:

• If e-mails are not carefully monitored, for example, when a lawyer is on holiday, there is always a risk that an important document which has been served will not be read for days or weeks after it is deemed served, having serious consequences for both solicitor and client. Law firms should therefore give close consideration to whether they are prepared to adopt a policy of accepting service by e-mail in all or any circumstances. It is also always good practice to ensure that lawyers’ e-mail inboxes are monitored twice daily when they are absent from the office to ensure that any important documents sent by email are dealt with timeously. It is easy for this task to be forgotten so systems and prompts need to be put in place to ensure the discipline is adhered to.
• If a law firm wants to cut down on the risks connected with being served by e-mail they should take care that they do not include email addresses in statements of case or responses to Claim Forms and make it clear that their policy is restricted to accepting service of e-mail documents only in particular circumstances.

An area relating to service of documents which has always caused problems is that of the timely and correct service of the Claim Form. Over the past year or so, the Court of Appeal has helped to clarify the rules regarding dispensing with service and extending time for serving the Claim Form. In the Footnotes section of the Autumn 2002 edition of this Briefing, we reported on Anderton v Clwyd County Council (2002) in which the Court of Appeal approved the decision in Godwin v Swindon Borough Council (2001). The Court of Appeal confirmed that CPR 6.9 (dispensing with service) could only be used retrospectively in "exceptional circumstances" and that the court would rarely have the power under CPR 7.6(3) to grant an extension of time for service of the Claim Form.

The Court of Appeal returned to this area in Cranfield v Bridgegrove (2003), a series of cases heard together, highlighting the dangers of leaving service of the Claim Form to the last minute. In all these cases the court focussed on whether the fault for late service lay with the claimant:

• In Cranfield itself the court had forgotten to serve the Claim Form so that service would have been out of time. The Court of Appeal held that the words "unable to serve" in CPR 7.6(3) could apply where there had not even been an attempt to serve the Claim Form and took into account the fact that it was the court that had failed to serve in time.
• In Claussen v Yates the court similarly failed to serve the Claim Form in time but as the fault lay with the Claimant’s solicitors for failing to notify the court that the defendant’s solicitors were instructed to accept service, CPR 7.6(3) did not apply.
• In McManus v Sharif the Claimant’s solicitors had served an unsealed and unsigned Claim Form on the defendant’s insurers rather than on the defendant. The Court of Appeal held that service would not be dispensed with under CPR 6.9 as in this case there had been too many significant departures from the rules in the way in which the Claim Form had been served.

The clear message from the Court of Appeal is that solicitors must ensure that the Claim Form is served correctly and in good time. Although there will be exceptional circumstances in which CPR 7.6(3) and CPR 6.9 will apply, these are rare. Risk management procedures should be put in place to ensure that diary entries and reminders are made which expire at least a month before the end of the service period. Clients should also be told that they must not leave it to the end of the validity period before giving instructions to effect service, and that if they do, they are unlikely to be met with sympathy by the courts.