Supreme Court refuses to validate service retrospectively where there was no prior agreement to email service

In a recent decision, the Supreme Court declined to order that steps taken by the claimant to draw the claim form to the attention of the defendant by email should amount to good service despite the claimant (a litigant in person) having failed to jump through the necessary procedural hoops for email service. The result was that the claim form expired unserved in circumstances where a fresh action by the claimant was likely to be time-barred: Barton v Wright Hassall LLP [2018] UKSC 12.

This case acts as a reminder that proceedings may be served by email only if the party to be served (or its solicitor) has previously indicated in writing that it is willing to accept service by email, which will include where the solicitor’s notepaper sets out an email address and states that it may be used for service. The Supreme Court in this case suggested that this provision may be ripe for reconsideration by the Civil Procedure Rules Committee, but in the meantime that remains the rule.

The decision also illustrates that litigants in person cannot generally expect greater indulgence than legally represented parties in terms of compliance with rules and court orders. As Lord Sumption put it, “unless the rules and practice directions are particularly inaccessible or obscure” (which he did not consider was the case here), it is reasonable to expect litigants in person to familiarise themselves with the applicable rules. 

Background

The claimant purported to serve the claim form on the defendant’s solicitors by email, without obtaining any prior indication that they were willing to accept email service.

It was common ground that this was not good service. CPR 6APD.4 provides that where a document is to be served by “fax or other electronic means”, the party to be served or its solicitor must previously have indicated in writing that it is willing to accept service by such means and given the number or address to which it must be sent. In the case of email, an email address set out on the notepaper of the party’s solicitor will be taken as sufficient written indication, but only where it is stated that the email address may be used for service.

As the email was sent on the last day of the claim form’s four-month period of validity, the claim form expired unserved the following day. For the purposes of the appeal, it was assumed that any fresh action by the claimant would be time-barred.

The question that went up to the Supreme Court was whether the court should validate service under CPR 6.15(2), which provides:

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.

The lower courts declined to make such an order. The claimant appealed to the Supreme Court.

Decision

The majority of the Supreme Court dismissed the appeal. Lord Sumption gave the lead judgment, with which Lord Wilson and Lord Carnwath agreed. Lord Briggs delivered a dissenting judgment, with which Lady Hale agreed.

Lord Sumption referred to the Supreme Court’s decision in Abela v Baadarani [2013] 1 WLR 2043 (considered here), in which the court granted an order for retrospective alternative service on a defendant outside the jurisdiction in circumstances where the defendant had deliberately obstructed service. Lord Sumption noted that that case was very different from the present one, but said it was authority for a number of principles of more general application, including the following:

  • The test is whether, “in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service”.
  • Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is a “critical factor”, but the mere fact that the defendant learned of the existence and content of the claim form cannot in itself constitute a good reason to make the order.
  • The question is whether there is good reason for the court to validate the mode of service used, not whether the claimant had good reason to choose that mode.

In the generality of cases, Lord Sumption said, the main relevant factors in deciding whether to exercise the power under CPR 6.15(2) are likely to be: (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules; (ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired; and (iii) what if any prejudice the defendant would suffer. None of these factors is decisive, and the weight to be attached to each will vary with all the circumstances.

Turning to the present case, Lord Sumption emphasised that it could not be enough that the claimant’s mode of service successfully brought the claim form to the attention of Berrymans. As was pointed out in Abela v Baadarani, that was likely to be a necessary condition for an order under CPR rule 6.15, but it was not a sufficient one. The manner in which the claim form is brought to the attention of the defendant is also important. A “bright line rule” is needed to identify when service is effected, so as to determine the exact point from which time runs for the defendant to take further steps or the court to enter judgment in default, and service may also have significant implications in relation to limitation (as in this case).

Lord Sumption noted that there are particular problems associated with email service, given that (as noted in the Law Society’s Practice Guidance on electronic mail from May 2005) email “can arrive unperceived by other members of staff” and so there have to be arrangements in place to ensure that email is monitored and communications constituting formal steps in litigation are identified and distributed appropriately.

Lord Sumption noted that a lack of legal representation will often justify making allowances in making case management decisions and conducting hearings, but said it will not usually justify applying a lower standard of compliance with rules or court orders. He added, “Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”

Here, Lord Sumption did not accept that the relevant rule and practice direction were inaccessible and obscure, and in any event the claimant did not refer to them. A claimant need not necessarily demonstrate that there was no way it could have effected service according to the rules within the claim form’s period of validity. It is enough that it has taken reasonable steps to do so. But in the present case the claimant made no attempt to serve in accordance with the rules; all he did was employ a mode of service which he should have appreciated was not in accordance with the rules.

Lord Sumption rejected the submission that the defendant’s solicitors had been “playing technical games”. Even if they realised that service was invalid in time to warn the claimant to re-serve properly, they were under no duty to give that advice and could not properly have done so without taking the defendant’s instructions and advising them that it might deprive them of a limitation defence – in which case it was “hardly conceivable” the defendant would have authorised it.

Ultimately, the claimant had issued the claim form at the very end of the limitation period and made no attempt to serve it until the very end of its period of validity. As Lord Sumption put it, “A person who courts disaster in this way can have only a very limited claim on the court’s indulgence in an application under CPR rule 6.15(2).” By comparison, the prejudice to the defendant was palpable, as it would retrospectively be deprived of an accrued limitation defence if service was validated.

Lord Briggs, dissenting, considered that there was good reason to make an order under CPR 6.15(2), as the purposes of the rules of service had been fulfilled in this case.

Both Lord Briggs and Lord Sumption called on the Civil Procedure Rules Committee to consider whether the provisions regarding service by email, as set out in the rules and practice direction, are still appropriate and sufficiently clear.

2 Comments

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2 Responses to Supreme Court refuses to validate service retrospectively where there was no prior agreement to email service

  1. Litigation team

    In Woodward v Phoenix Healthcare Distribution Limited [2018] EWHC 334 (Ch), in contrast to the decision in Barton, Master Bowles made an order under CPR 6.15 in circumstances where the claimants’ solicitors had served proceedings on the defendant’s solicitors shortly before expiry of the claim form without having obtained confirmation that the solicitors were instructed to accept service.

    The Master accepted that the defendant’s solicitors had not breached any duty to the claimants, or any professional duty, in failing to draw the claimants’ attention to the error in service. However, in light of the parties’ duty to the court to give effect to the overriding objective, he found that it did amount to “technical game playing”, and therefore justified the order under CPR 6.15.

    Master Bowles noted Lord Sumption’s view in Barton, as noted above, that the defendant’s solicitors were not under any duty to advise of the claimant’s mistake as to service – but, perhaps surprisingly, reached a different conclusion, noting that he did not regard the majority in Barton as having given a definitive answer on the point. The Master has granted permission to appeal against his decision.

    • Litigation team

      The Master’s decision in Woodward has been overturned on appeal: see decision of HHJ Hodge QC reported on Lawtel 30 July 2018.

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