Solicitors acting for opposing parties now routinely email each other throughout the lifetime of a dispute, but there is still reluctance to accept service of legal proceedings by email. Unauthorised service of a claim form by email was considered recently in Dunbar Assets Plc v BCP Premier Ltd. We look at some issues thrown up by this decision.
The courts have traditionally taken a hard line when it comes to service of process and enforcing limitation periods. There are good reasons for this - litigants need certainty so that they and the courts are not burdened by satellite litigation concerning the validity of service and the existence of a limitation defence.
A claim form can only be served by email where the solicitor acting for the defendant has consented in writing. Practice Direction 6A.4.1(2) states that a statement to this effect on the solicitor’s writing paper is sufficient. Where the claimant has purported to serve the claim form by email without consent, service is invalid unless the court retrospectively permits service by this method under CPR 6.15 or dispenses with service under CPR 6.16.
In Dunbar Assets the four-month deadline for serving the claim form under CPR 7.5 expired on 17 April 2014. The claimant gave the defendant the claim form on 3 March 2014 but stated that this was “for information purposes only”, the consequence of this being that time for service of the particulars of claim did not start to run.
Correspondence between the parties followed in which the claimant asked for an extension of time for service of the claim form and particulars, and the defendant asked why the claimant had waited until limitation issues compelled it to issue proceedings without first engaging the Pre-action Protocol for Construction and Engineering Disputes (the Protocol).
On 1 April the claimant’s solicitors provided a draft consent order requiring the claimant to serve the claim form by 4pm on 3 April and extending time for the service of particulars of claim to 5 September. On 3 April, after some disagreement about the costs provisions in the draft order, the order was agreed. On the same day, the claimant’s solicitors emailed a copy of the claim form to the defendant’s solicitors. The defendant’s solicitors had agreed to accept service, but had not been asked to accept service by email, and they subsequently took the point that service was invalid.
Application to validate service by email
A deputy master allowed the claimant’s application under CPR 6.15, ordering that the defective service by email was good service. The defendant appealed. The following facts were not in dispute:
- The claimant’s solicitors were aware or ought to have been that the actual claim form had to be served
- There was ample time for them to effect proper service on 3 April
- There was no explanation as to why the claimant’s solicitors did not serve the actual claim form on 3 April
Alternative service under CPR 6.15
CPR 6.15 provides that the court may permit service (retrospectively if necessary) by an alternative method or an alternative place where there is "good reason" to do so. The Supreme Court’s decision in Abela v Baadarani endorsed a fairly generous approach to retrospective orders for alternative service under CPR 6.15 in a case concerning with service out of the jurisdiction. Lord Clarke said “the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR 6.15(2). On the other hand, the wording of the rule shows that it is a critical factor.”
The decision in Dunbar Assets
The judge reviewed the authorities and favoured the strict approach to CPR 6.15 taken in Brown v Innovatorone Plc. The discretion to grant relief should not be exercised over-readily and the court should examine with care why the claimant needs to ask for its indulgence. The judge also looked to guidance about prejudice from the Court of Appeal in Kuenyehia v International Hospitals in the context of dispensing with service under CPR 6.16.
He concluded that there was not a good reason to make an order under CPR 6.15, but in case he was wrong about that, he went on to consider whether he should make the order as a matter of discretion. Two factors weighed against doing so. Firstly, the claimant had given no explanation of why the claim form had not been served properly and so there was no material upon which the court could form a view about how to exercise its discretion. Secondly, the loss of a limitation defence constituted real prejudice to the defendant.
Other potential arguments
This decision has some peculiar features, not least the absence of any evidence from the claimant’s solicitors about why they failed to serve the actual claim form. A candid confession is required on these occasions. There are however some other points not raised in the judgment that could be of relevance in other cases. We look briefly at them below.
Calculating the deadline for service
Under CPR 7.5 all the claimant has to do is to despatch the claim form by an accepted method before 12 midnight on the calendar day four months after the claim form is issued. It will be deemed served under CPR 6.14 on the second business day after despatch, regardless of the method of service used, but that is irrelevant to compliance with CPR 7.5.
The problem here was that, although the four month period under CPR 7.5 did not expire until 17 April, the claimant had agreed a consent order overriding that rule and requiring service of the claim form on 3 April. In those circumstances, the despatch rule in CPR 7.5 didn’t apply so service by an accepted method had to be made by 4pm on 3 April.
If service had been required of another type of court document and not a claim form, the position would have been even worse for the claimant. It’s important to remember that where an order for directions states that documents such as particulars of claim or witness statements are required to be served by a particular date, the deemed service rules in CPR 6.26 apply (Joyce v West Bus Coach Services Ltd).
Service of a copy claim form
The claimant’s solicitors put a copy of the claim form in the DX on 3 April, as well as sending it by email. If they’d done that the day before so that it arrived on 3 April, or if CPR 7.5 had applied, would it have been valid service? There has been a lack of clarity about the status of a copy claim form butHills Contractors and Construction Ltd v Struth is authority that service within the jurisdiction must be of one of the original sealed claim forms provided to the claimant by the court unless the defendant has agreed to service by fax or email. Comments suggesting the contrary in Weston v Bates were read as referring to service outside the jurisdiction.
Ironically, as they had been told that the defendant’s solicitors were authorised to accept service, the claimant’s solicitors could have served the claim form by fax on 3 April and this would have been good service if the defendant’s solicitors had a fax number on their writing paper (see Brown v Innovatorone and Asia Pacific (HK) Ltd v Hanjin Shipping Co Ltd).
Now that we are no longer subject to the draconian approach to missed deadlines in Mitchell and have become used to the more flexible discretionary approach endorsed by the Court of Appeal inDenton v TH White Ltd, this decision seems quite tough. It’s important to remember, however, that a stricter approach has always applied to the commencement of proceedings in the interests of certainty. It is only the introduction of the retrospective power to validate defective service in CPR 6.15, and the generous approach taken to it in Abela, that has confused the picture.
If a claimant leaves service of proceedings until the end of the limitation period, particularly where they have not followed a pre-action protocol before doing so, they will be in a weak position should they get service wrong. The claimant in Dunbar Assets did a deal which bought it several additional months for service of the particulars of claim in exchange for accepting a shorter period for service of the claim form. In those circumstances and in the absence of any explanation for why the original claim form was not delivered (or faxed) to the defendant’s solicitors on 3 April, the judge’s conclusion is not surprising.