Service by email – should the CPR be changed?

A guest blog by Olivia Paterson, an associate solicitor at Express Solicitors in Manchester

Holroyd: Simple answer to the problem

In 1971, a Ray Tomlinson, computer engineer, sent the very first email. This was a test message to himself, which he sent to a computer that was placed right next to the one he had used to send it.

According to Radicati Group statistics, in 2018 more than 269 billion email messages were sent every single day, equating to approximately 72 emails for every one of the estimated 3.7 billion email users in the world. It is now estimated that the average office worker receives 121 emails per day and sends out 40.

With 86% of professionals preferring email as their favorite mode of communication, and the courts accepting documents by email (albeit sometimes sized limited), why do the CPR still not reflect modern-day technology when it comes to the service of court documents?

Rules 6.3 and 6.20 state that methods of service include personal service, leaving a document at the correct address, first-class post, document exchange, or any other service which provides for delivery on the next business day.

Service by fax or e-mail is only permitted, in accordance with paragraph 4.1 of practice direction 6A, if agreement is reached between both parties to accept service by electronic means.

The courts appear reluctant to accept service by email. In Barton v Wright Hassall LLP [2018] UKSC 12, the Supreme Court held that email service was not effective, despite the claimant being a litigant in person.

The claimant served a claim form on the defendant’s solicitors by way of email without seeking agreement from them beforehand. The court held that service was defective, ruling that it was reasonable to expect a litigant in person to familiarise themselves with the rules which applied to any procedural step they were about to take.

The claim was struck out by the Supreme Court, despite the defendant’s solicitors confirming that the email, with the court documents attached, had been received.

The courts are clearly taking a harsh stance on email service. If emails were added into rule 6.20, then the courts would be in line with modern culture, and society’s preferred mode of communication, to the benefit not only of professionals but also the ever-increasing number of litigants in person.

The courts gave us a glimmer of hope just one day prior to Barton, in Knight v Goulandris [2018] EWCA Civ 237, when a party award was deemed validly served by email in accordance with section 15(1A) to (1C) of the Party Wall etc Act 1996. However, this was short-lived following the Supreme Court ruling.

Surely email service is in line with the overriding objective and also one of the most secure ways of sending information to third parties, as they can be encrypted, password protected, and service can be evidenced by way of delivery receipts and read receipts.

Whilst post and DX correspondence should reach the recipient, how many times have solicitors faced arguments that documents have not been sent or received, sometimes only finding this out days or weeks after the service date? The only guaranteed way to prove it is to pay for recorded delivery.

It’s simple, really: email service needs to be added to the CPR.

    Readers Comments

  • James Kingston says:

    The issues with email service are huge. Things going to span that should not, the size of emails and attachments that can be accepted. I’ve often had people “serve” documents by email in a format that is exclusive to a particualr type of case management system that cannot be read! For this reason it is entirely sensible that email service is restricted and can only be effected when parties agree addresses and formats for messages.

  • Nicola W says:

    Very interesting article by Express Solicitors regarding the point that service by email should be added to the CPR.

    I do wonder however, why Express Solicitors do not accept service by email?

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