Given Covid-19 I am struggling to serve the claim form and the defendant will not agree to service by email. Can I just serve it by email and then rely on CPR 3.10 to validate service?
A claim form is an originating process of the Court and special rules apply for service.
Therefore, it is important to try to serve in a compliant manner. Service by email is permitted under the CPR but only where the receiving party permits or has agreed service by email. Even where permitted or agreed, any limitation on the size or format of documents must be check: CPR PD 6A para 4.2.
However, if the other side is refusing to accept service by email and some aspect of Covid-19 makes other methods of service unpalatable, then the best course is to apply in advance for an order for substituted service under CPR 6.15. The approach of the Court under this provision is quite flexible: for instance, service permitted by WhatsApp message. Covid-19 is likely to provide fertile ground for the necessary evidence to be filed in support of such an application. If the other side is being unreasonable about service by email, then it is a good idea to serve the claim form by in advance of the application under CPR 6.15 and the Court may make an order pursuant to CPR 6.15(2) that the email already sent constitutes good service. Also remember to provide the Court with a draft order complying with CPR 6.15(4).
Only as a last resort, should service by effected by email by relied upon without following the CPR gateways.
In that circumstance, an application can be made for retrospective cure: CPR 3.10; or to entirely dispense with service: CPR 6.16.
However, only in the most exceptional cases will such a retrospective cure be granted where the effect is to extend the period of limitation ordinarily applying.
Covid-19 may yet provide precisely that type of exceptionality but it should not be relied upon, particularly where a claimant has left it to the last minute to serve.
The Court will service save in 3 situations:
“6.4— Who is to serve the claim form
(1) Subject to Section IV of this Part … the court will serve the claim form except where—
(a) a rule or practice direction provides that the claimant must serve it;
(b) the claimant notifies the court that the claimant wishes to serve it; or
(c) the court orders or directs otherwise.”
Where the Court serves, the Court decides how to do so: CPR 6.4(2).
Where a claimant is to serve, CPR 6.3(2)(d)-(e) provides:
“6.3— Methods of service …. (2) A claim form may … be served by any of the following methods—
(d) fax or other means of electronic communication in accordance with Practice Direction 6A; or
(e) any method authorised by the court under rule 6.15.”
However, Practice Direction 6A significantly limits service by email:
“Service by fax or other electronic means
4.1 Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means— (1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving—
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1)—
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
4.2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).
CPR 6.15 provides for substituted service:
“6.15— Service of the claim form by an alternative method or at an alternative place
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
(3) An application for an order under this rule—
(a) must be supported by evidence; and
(b) may be made without notice.”
Under CPR 3.10, the Court can cure defects of procedure; however, there is a question as to whether a failure to serve originating proceedings at all can be properly characterised as a procedural defect. In Integral Petroleum SA v SCU-Finanz AG  EWHC 702 Mr Justice Poppelwell was prepared to find that a failure to comply with the requirements of Practice Direction 6A was an error of procedure in serving the Particulars of Claim by email and was a failure to comply with a rule of Practice Direction which fell within CPR 3.10.
Equally, CPR 6.16 provides the Court a discretion in exceptional circumstances to dispense with service of the claim form.
Thus, in Kuenyehia v International Hospitals Group Ltd  EWCA Civ 21, the Court of Appeal reviewed the relevant case law on the application of CPR 6.16 and stated that the principles to be derived are:
(1) only in an exceptional case will the Court exercise its powers to dispense with service where the time limit for service of the claim form under CPR 7.5 has expired before service was effected in accordance with Part 6.
(2) the power is not likely to be exercised except where the claimant has either (i) made an ineffective attempt to serve by one of the methods permitted by CPR 6.3, or (ii) has served in time in a manner which involved a minor departure from one of those permitted methods of service.
(3) Notwithstanding, it was not possible to predict all the circumstances in which the Court might be convinced to dispense with service of a claim form.
Perhaps the current unprecedented crisis will provide an opportunity to revisit these principles.
This article was first published by Lexis Nexis.