Methods of serving court documents - is serving court documents by email valid?

What methods are available for serving a claim form?

A claim form is the document which the Court issues to initiate proceedings and therefore it is vitally important that the claim form is served correctly on a defendant.

Part 6 of the Civil Procedure Rules (“CPR”) governs serve of a claim form. Rule 6.3 of the CPR states the permitted methods of service are personal service, first class post, dx or another next-day delivery service, fax or other means of electronic communication and by any other method authorised by the court.

There have been two recent cases addressing the methods which can be used to serve court claims showing that the Court is willing to adapt its procedures to allow for service where necessary but that there are pitfalls to watch out for.

What is the time limit to serve a claim form?

Where the defendant is in the jurisdiction, a claim form must be served with 4 months of the date that it was issued by the Court. Whereas if a defendant is outside of the jurisdiction, the time limit for service of the claim form is 6 months from the date of issue.

If the time limit for service is approaching and the claim form has not been served, then you need to make an application to the Court for an extension of time to serve the claim. It is important that this application is made before the time limit expires, failing which it will not generally be possible to extend the period for service and the claim form will lapse.

Can a claim form be served on the defendant’s solicitor?

The fact that the defendant has a solicitor acting for them does not necessarily mean that you can serve a claim form on the defendant’s solicitor. Service on a defendant’s solicitor is only valid if the solicitor has provided written notification that they are authorised to accept service on behalf of the defendant. Any such written notice needs to be clear and explicit and so if you are getting ready to issue proceedings, it is worth writing to the solicitor acting for the defendant asking if they are authorised to accept service so that you know the position before the claim is issued.

Can a claim form be validly served by email?

Litigation cases will invariably involve email correspondence between the parties, but it is important to note that just because a claimant has entered into email communication with the defendant prior to service of the claim form, it does not automatically mean that the defendant will accept service by email. Nor does it remove the need to meet the requirements set out in CPR PD 6A.

Whilst CPR 6.3 provides for service by electronic means, there is not an automatic right to serve a claim form by email. As a result, a claim form can be served by email only under specific circumstances set out in the CPR and Practice Direction 6A.

Service by email requires the express agreement of the defendant or their solicitor in writing specifying the email address or other electronic identification to which the claim form should be sent.

Non-compliance with the rules on service by email can have severe consequences, including invalid service. For example, if the claim documents are brought to the attention of the defendant, failure to comply with the procedural requirements, such as using the correct email address, will result in service being invalid.

Paragraph 4.1(2) of CPR PD 6A, provides an explanation of what is meant by a “written indication” and in relation to email provides – “an email address or email addresses set out on the writing paper of the solicitor acting for the party to be served but only where it is also stated that the email address(es) may be used for service”.

The party serving the claim form need to ask the party being served if there are any limitations to their agreement being served electronically, e.g. the maximum size of attachments which can be received, or the format in which they should be sent. In litigation involving multiple lawyers, it is common practice for multiple email addresses to be provided as addresses for service. Where this is the case, there is no requirement to serve on every one of the email addresses provided. The correct approach is set out in CPR PD 6A, which provides that valid service can be effected by sending the document to any two of the e-mail addresses provided.

When serving documents electronically, it is advisable to take a cautious approach and fully comply with the CPR Rules in relation to service by electronic means. The Court have, however, held that Practice Direction 6A should be interpreted in a practical and common-sense way when considering the electronic service of documents. Failure on the part of a serving party to ask the recipient about limitations on accepting service by electronic means was not necessarily fatal to good service. Likewise, service is not automatically defective where the defendants’ solicitors specify more than one email address at which to effect service.

Where documents have been served electronically in accordance with the rules, there is no requirement to follow up service with hard copies of the claim documents.

Court proceedings legal advice 

If you are considering service by email it is important that you are not only familiar with the CPR but also with recent case law on service as the position continues to evolve. The Dispute Resolution Team at Boyes Turner has significant experience in service of claims including service by electronic methods.

If you are considering bringing proceedings and/or have any queries in relation to service, then please do contact our dispute team at [email protected].