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Service by email – TCC strictly applies rules to decide service was defective

It is fair to say that the rules on service of claims can be something of a minefield for litigators.

We have previously reported on whether an application to suspend discharge from bankruptcy served by email had complied with the rules on service as set out in CPR Practice Direction 6A. 

In the recent judgment in McAlpine Ltd v Richardson Roofing Co Ltd, a similar principle came up for consideration by the Technology and Construction Court. McAlpine had issued “protective” proceedings on 2 June 2020 alleging that Richardson had breached a cladding sub-contact for a development in Bristol. On 23 June 2020 the defendant’s solicitors filed and served a “notice of change” indicating a change of legal representative, on which the new solicitors provided address and email details. There were then two lengthy stays of proceedings to allow the claimant more time to fully particularise its claim, the second of which required service of the claim documents to take place on 18 March 2022. On this date, and only very shortly before the deadline, the claimant’s solicitors purported to serve the claim form and particulars of claim on the defendant by email, using the email address provided in the notice of change. The defendant argued that service was invalid as, pursuant to CPR Practice Direction 6A, there had been no indication given by them that they were prepared to accept service by email.

CPR PD 6A (para. 4.1) requires that, for service to be effected by fax or other electronic means, one party must give to the other party a written indication that it is willing to be so served, and the fax number or email address to which the documents are to be sent. The Practice Direction goes on to state what can amount to such an “indication”, namely (as was particularly relevant to this case) “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”.

The notice of change not being a statement of case, the crux of the case was whether it could be considered “a response to a claim filed with the court”. In reaching its judgment that it could not, the court dismissed the claimant’s argument that including an email address in the notice of change was the same as including it in an acknowledgement of service. The court distinguished between the different functions of these documents. Whilst both documents contain details of the defendant’s contact address, the acknowledgement of service performs a very important procedural step allowing the defendant to indicate if it is going to admit or defend the claim and whether jurisdiction is to be challenged or not. The notice of change has no such important procedural function. In rejecting this argument the court held that the alleged service by email had not been valid.

The court’s application of CPR PD 6A is a helpful reminder of the rules around service by email. The simple and practical implication of this case is that claimant parties should, as a matter of routine, seek agreement in writing well in advance of the deadline for service that the defendant will accept service by email. The court appeared to have limited sympathy with the claimant in this case who, after lengthy delays in finalising their claim, only sought to serve it on the very last day, and then did so without proper regard to the rules.

"What needs to be done in good time before the service deadline - and in this case there was ample time - is to write to the other party and say whether they accept service by email or not. So it is not an unduly onerous requirement." - Mr Justice Waksman


dispute resolution