Service of proceedings by email

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The digital revolution has changed the legal profession in many fundamental ways. I rarely send a letter by post now when I can email it instead; I can work from a laptop or tablet anywhere in the world; and I can even commence proceedings by uploading them to a dedicated court service portal. 

However, there is one area of litigation that is still firmly stuck in the dark ages (well, the late 1990s at least!). This is the rule regarding service of proceedings by email.

 A claim form (the document commencing proceedings) may be served by:

  • Personal service
  • First class post
  • Leaving it at a specified place (such as a solicitors’ office, or a company’s registered office) 

A claim form may also be served by “fax or other electronic means” but only if the party to be served (or their solicitor) has confirmed that they are willing to accept service that way.

When serving a party’s solicitor, the inclusion of a fax number on their letterhead is taken as sufficient indication that they are willing to accept service by fax. This is not the same for an email address. In those circumstances, the solicitors must specifically confirm that the email address may be used for service. 

Recently, these issues came before the Supreme Court in the case of Barton v Wright Hassall LLP. Mr Barton, a litigant in person, issued proceedings against his former solicitors, Wright Hassall. He was in email correspondence with Wright Hassall’s instructed solicitors, but they had not stated that they would accept service by email. Mr Barton subsequently served proceedings on them by email. Although the solicitors accepted that they had received the email and the Claim Form, under the strict interpretation of the court rules that was not good service, and because time limits had expired, Mr Barton’s claim was then statute barred.

Mr Barton applied to the court to retrospectively allow the service by email. His application came before five judges of the Supreme Court, and he narrowly lost with a split decision of three to two.

Lord Sumption, who gave the leading judgment finding against Mr Barton, held that it was not enough that Mr Barton’s mode of service successfully brought the claim form to the attention of Wright Hassall’s solicitors. He still needed to comply with the formal steps set out in the court rules. He noted that there were: “particular problems associated with electronic service, especially where it is sought to be effected on a solicitor…the volume of emails and other electronic communications received by even a small firm may be very great. They will be of unequal importance. There must be arrangements in place to ensure that the arrival of electronic communications is monitored, that communications constituting formal steps in current litigation are identified, and their contents distributed to appropriate people within the firm”.

Lord Briggs gave a dissenting opinion. He held that Mr Barton: “may fairly be criticised for having failed to read the relevant part of the rules, and making an incorrect assumption instead, but this does not on balance detract from…by his having, albeit in a modestly non-compliant way, achieved all that which the rules as to service by email are designed to achieve”.

In my view, the court rules regarding service by email are long overdue for amendment. The fact that an issue like this splits the Supreme Court shows that the current rules are not fit for purpose in the digital age. It seems perverse that Mr Barton sent an email to Wright Hassall’s solicitors, and they received and fully understood its contents, but that his claim failed on a technicality because he did not comply with the exact wording of the court rules.

Hopefully this will be an issue that is reviewed sooner rather than later but, in the meantime, it is best to seek legal advice before commencing and serving proceedings.