Two steps forward, one step back - the blurred line of service via email
This article was originally published on Thomson Reuters Practical Law Dispute Resolution blog.
This article was co-authored by Philip Nyakudya, Trainee Solicitor, Manchester.
The last few years have seen a large emphasis on the use of technology. Businesses and law firms alike have had to adapt to meet the changing climate. An increasing number of meetings are now being held virtually, documents can easily be signed using online platforms and, most of all, emails have now become the most preferred method of communication in a business.
Therefore, many law firms have opted to communicate and serve proceedings using emails as this is time efficient, saves costs and advances sustainability. However, the question remains: is service by email valid?
Simply put, yes, service by email can be valid.
CPR 6.3(1)(d) and CPR 6.20(1)(d) permit the service of a claim form or any other document by ‘fax or other means of electronic communication in accordance with PD 6A’. Under PD 6A.4.1, for service by email to be valid, the party who is to be served, or their solicitor, must have previously indicated in writing:
- That they are willing to accept service by email, and
- The email address to which it must be sent.
An important case to consider when serving a claim form or any other documents by email is that of McAlpine Ltd v Richardson Roofing Co Ltd  EWHC 982 (TCC) (McAlpine).
The case of McAlpine concerned a construction dispute but the ruling can be widely applied. In the dispute, Waksam J ruled that the claimant had invalidly served the particulars of claim under PD 6A.4.
On 18 March 2022, before the deadline date, the particulars of claim were sent to the defendant’s solicitors by email only. Having received these, the defendant’s solicitors asserted that service by email did not comply with the requirements of PD 6A. A week later, a copy of the particulars was served by hand. The claimant then sought a declaration that the original service was valid or, that it should have an extension of time so as to encompass the service by hand.
The claimant contended that, in accordance with PD 6A.4, the defendant’s solicitors had indicated in writing, by including their email address in their notice of acting, that they would accept service by email.
In addition or alternatively, the claimant asserted that the notice of acting, which included an email address, was a response to the claim and therefore a sufficient indication for the purposes of PD 6A.4.1(2)(c) (“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”, for example, the address details in the pro-forma claim form).
The application was refused by Waksman J. The court held that the claimant failed to demonstrate the defendant’s solicitor had made any explicit indication in writing that they would accept service by email (paragraph 17, judgment). The claimant relied both on the defendant’s failure to comment on previous service of a stay of application by email and on the defendant being aware of “service” of that application having been mentioned to the court in correspondence. These instances were not explicit.
The judge also held that simply putting an email address in a notice of acting was not an indication. Nor was the notice a direct response to a claim.
In his ruling, Waksman J emphasised the importance of knowing clearly and in advance what constitutes proper service. For the avoidance of doubt and confusion, it is necessary to write to the other party, in good time before the deadline, and to get confirmation of whether they accept service by email.
Waksman J’s ruling is a change in the courts’ previous direction of travel, which demonstrates a more relaxed attitude about non-compliance with PD 6A, in relation to documents other than the claim form (Integral Petroleum SA v SCU-Finanz AG  EWHC 702 [Comm]).
With the rest of the world moving forward with technology, the ruling in McAlpine can be seen as a step back for the legal industry. Whilst some may appreciate the importance of clarity when dealing with something as significant as service, failure to acknowledge communication by email as an effective form of service is somewhat archaic.
In its May 2022 meeting minutes, the CPRC indicated its intention to start work on electronic service.
For now, McAlpine reminds us that it is imperative to utilise emails as an effective form of service, if the other side has in writing expressly indicated its willingness to be served by email. If not, you risk suffering the same fate.