Serving documents by email – Civil Procedure Rules 6.20
Ensuring that documents are served on time is of course a fundamental task of any litigator. In the days immediately post Mitchell, the importance was heightened and even in post Denton days this is not something that should be treated lightly.
Civil Procedure Rule 6.20 (1) (d) allows for service by fax or other means of electronic communication. In accordance with Practice Direction 6A 4.1, there is a requirement that before serving by fax or email that the recipient must have indicated in writing that they were willing to accept service by that means. The recipient will be taken to have so indicated if the fax number or email address is set out on the “writing paper” of the Solicitor. However, by 4.1 (2) (b) there is an additional requirement if using the email address such that it must also specifically be set out on the writing paper that the email address may be used for service.
However, there is yet a further provision such that if a fax number or email address is set out on a Statement of Case or a response to a claim filed with the Court, then that can be taken as the appropriate indication whether or not it is also indicated that the email address may be used for service.
The Practice Direction goes on to say that where it is intended to serve by email then the part serving must first ask the intended recipient whether there are any limitations to the recipient’s agreement to accept service by such means, and quotes examples such as the format or the size of any attachments. In this day and age, with the prevalence of email communications, it does seem that sometimes these rules are not always treated seriously.
We certainly think it true that there are precious few queries raised of intended recipients as to whether there are any limitations in relation to format or size of attachments. Indeed, in an SCCO case of Brett v Colchester Hospital University NHS Foundation Trust  EWHCB 17 (Costs) Master O’Hare considered that this requirement was outdated and just an indication of best practice, rather than something which was an absolute pre-requisite.
In that case, there was no issue between the parties as to whether service by email was acceptable in principle. The problem there was that despite the Defendant’s representative sending a Notice of Change, it seems to have got lost somewhere in transmission and thus did not reach the fee earner with conduct for the Claimant. This led to service of the Bill on the previously instructed Solicitors, subsequent delay and thus the obtaining of a Default Cost Certificate.
The case is useful now to highlight the problems which can arise from using email to serve documents, even where it is permitted. In that case, Master O’Hare was of the view that different considerations should apply in relation to default Judgments than applications for relief from sanctions and therefore on the basis of there being substantial points in issue in the assessment, he was minded to allow matters to proceed.
We make these points because it is all too easy to sometimes get into bad habits. The consequence of failing to follow the rules can be heavy costs penalties and lengthy delays in the litigation process. It is certainly worth attempting to deal with these matters on a sensible basis and if an agreement for service by email can be reached, together with confirmation of receipt then clearly that is a good thing. However, serving by email when the recipient has not indicated that this is permissible can lead to real problems.