Another Cautionary Tale When Serving Proceedings Under CPR
Warning to Solicitors. You must obtain your opponent(s) consent to serve by email otherwise it’s not deemed good service as confirmed by High Court in:
The claimant issued a claim on 2nd August 2021 for damages for alleged clinical negligence suffered at the hands of 3 defendants in relation to private surgery at King’s College Hospital on 1st August 2018.
A lengthy pre-action protocol letter of claim was despatched to the defendants only a few days before the issue of the claim in the High Court due to the imminent expiry of the limitation period. Thereafter several extensions of time for service of proceedings were requested and approved by this court to enable the defendants to complete their investigations and prepare letters of response under the protocol.
The final extension of time was ordered on 1st March 2023 to expire on 30th March 2023. On 1st March 2023 when consenting to the request for the extension, the legal representatives for the second defendant wrote advising the claimant’s solicitors that service should not be effected via e-mail but by post.
The first and third defendants were then validly served with the proceedings but when the claimant’s solicitor turned their attention to service upon the second defendant, they overlooked the information regarding email service from the second defendant’s solicitor. Instead, on 30th March 2023, the final day of validity of the claim form, the claimant’s solicitors emailed the proceedings to the second defendant’s solicitors.
Upon being made aware of the error by the second defendant’s solicitors on 12th April, when they also served an acknowledgment of service contesting the jurisdiction of the court on the basis that the claim form was no longer valid, the claimant’s solicitors then attempted to re-serve proceedings by post the following day, and advised that an application for relief would be made; that application was issued 1 week later and is the subject of this application.
The Claimants failed to successfully apply for relief from sanctions.
The Service of a Claim Form is Governed by Civil Procedure Rules (CPR). Practice Direction 6A (PD 6A)
Cleary in the light of COVID when we all had to adopt how we worked, the rules need to be updated to avoid the drastic consequences of this rule for busy practitioners. The CPR still makes reference to service by fax, which I have not used for over 12 years.
PRACTICE DIRECTION 6A – SERVICE WITHIN THE UNITED KINGDOM
Provides where relevant:
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 e-mail addresses 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) –
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address or e-mail addresses 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 or e-mail addresses may be used for service; or
(c) a fax number, e-mail address or e-mail addresses or electronic identification set out on a statement of case or a response to a claim filed with the court.
(3) Where a party has indicated that service by email must be effected by sending a document to multiple e-mail addresses, the document may be served by sending it to any 2 of the e-mail addresses identified.
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).
4.3 Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy.
Judge Expressed Disquiet about the Existing Rules on CPR
In the case mentioned, the claimant’s proceedings were served by email without obtaining prior permission, which led to the dismissal of the claimant’s application for relief from sanctions. Master Stevens, presiding over the case, expressed disquiet about the existing rules, particularly where a defendant can resist a claim merely due to a technical flaw in the method of issuance.
The judge highlighted Practice Direction 6A, which stipulates that a solicitor’s email address may be used for service only if explicitly allowed. She noted that the COVID-19 pandemic has accelerated the evolution of electronic systems and changed working practices, emphasising the increasing emphasis on digitisation in civil litigation.
Failure on application for relief from sanctions
Relief from sanctions
The relevant provisons under 3.9 CPR are as follows
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
General power of the court to rectify matters where there has been an error of procedure
3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
The claimant sought relief from sanctions and a declaration that the amended claim form was served validly. The second defendant argued that the proceedings were null and void since the claim form expired before proper service. The claimant’s solicitors argued that, given email was a permitted method of service generally, the breach was minor. If this argument failed, they submitted that the court had the discretion to remedy the situation and allow the claim to proceed.
Master Stevens, bound by the existing rules and PD 6A as interpreted by higher courts, dismissed the claimant’s applications. She characterised the argument as an “exercise in semantics rather than one of substance,” acknowledging the effort put into the approach but ultimately adhering to the prevailing legal interpretation.