• news-banner

    Expert Insights

Miss Practice Direction 6A at your peril: important reminders about the requirements for valid service

In March 2020, as one judgment memorably put it, the world shifted on its axis. As part of this shift, electronic working came to the fore, driven by necessity and now recognised as a permanent feature of the landscape for users of the English courts. Communication – and service – by email was, of course, a feature long before the pandemic. However, amid all the changes brought about by remote working, the rules on service have remained – for now – unchanged. Cases continue to come thick and fast highlighting the ease with which parties and legal representatives alike can fall foul of those rules, the most recent example being R (Karanja) v University of the West of Scotland.

Background

In the case of Karanja, the claimant was a student enrolled on a course with the defendant, a Scottish university. The defendant had given the claimant notice to withdraw her from the course due to inadequate progress, which she unsuccessfully appealed to the university’s appeals committee.

During pre-action communications, the claimant’s solicitor emailed the defendant at a general email address, legal@uws.ac.uk, copying in the defendant’s Head of Legal. The Head of Legal replied to say that the matter had been passed to her insurance colleagues and that the best contact point going forward would be Jacqueline Thomson, whose email address she provided.

On 30 November 2021, the claimant’s solicitor lodged an application for judicial review. The application was left in the court’s drop box and an unsealed claim form and the supporting documents were sent to the defendant by special delivery that day.

On 1 December 2021, the court sent a letter to the claimant’s solicitor informing them that the claim had been issued and had to be served on the Defendant “within 7 days of the date of this letter and a Certificate of Service lodged with the Court. Failure to comply with this requirement may result in the file in these proceedings being closed”.

However, the claimant’s solicitor had travelled to Dubai on the evening that the application was lodged and he did not return to the office until 10 December 2021.

The claimant’s solicitor claimed that the letter took 5 days to arrive at his office and that, upon his return, someone in the Administrative Court had told him that he should serve the court’s letter on the defendant by email.

On 10 December, the claimant’s solicitor sent an email to the defendant purporting to effect service of the claim. That email was sent only to legal@uws.ac.uk, and not to Ms Thomson.

The claimant accepted that service of the unsealed claim form was not valid service but instead argued that there was valid service of the claim form by email on 10 December.

Service by email

The court identified three problems for the claimant. First, according to PD 6A.4.1(1)(a), before service, there must be a prior indication that the party to be served (or their solicitor) “is willing to accept service by fax or other electronic means”.

Michael Ford QC (sitting as a Deputy High Court judge) held that an email, identifying the best contact point along with their email address, did not indicate that service could be effected by sending an email to that person.

Words which state or at least provide a clear indication that service itself can be effected by email are required. Paragraph 4.1(2)(b) of PD 6A reinforces this view in that it provides that a solicitor’s email address may only be used for service if it is stated explicitly that the email address may be used for that purpose.

The second problem for the claimant was that the 10 December email was not in fact sent to Ms Thomson; instead it was sent to legal@uws.ac.uk. The fact that a colleague of Ms Thomson’s replied to say that she would forward the email to Ms Thomson still was not sufficient to effect service. As the court highlighted, the claimant would not necessarily know if the forwarding took place or when.

The claimant’s third problem was paragraph 4.2 of PD 6A, which requires that where a party intends to serve a document by electronic means, that party must first ascertain whether there are any limitations on the other party’s agreement to accept service by electronic means, for example the format of documents or the maximum size of attachments to be received.

The claimant submitted that the defendant had “implicitly” confirmed there were no such limitations when its Head of Legal replied to confirm safe receipt of the claim form, which the court rejected.

The court held that there was no valid service of the sealed claim form by email.

Extension of time

Whilst this decision was sufficient to decide the case, the court went on to consider whether, had service been validly effected by email on 10 December (two days later than the 7-day time limit imposed under CPR 54.7 for judicial review claims), time for service should be extended under CPR 3.1(2)(a).

The claimant referred to the difficulties of solicitors operating during the pandemic, her solicitor having been out of the country in Dubai and the court’s letter not arriving until 6 December, close to the expiry of the time for service.

However, the claimant failed to convince the court that:

  1. She had taken all reasonable steps to comply with service within the relevant time period but had been unable to do so (the requirement under CPR 7.6, which the court held applied by analogy), or
  2. That she had acted promptly in making the application for an extension of time.

Accordingly, the application to extend time was also refused.

Comment

The judgment serves as an important reminder to practitioners that to effect service by email they should obtain a clear prior written indication that the party on whom they want to effect service is willing to accept service by email. The court will not deal with inferences or, as Mr Justice Waksman put it in McAlpine Ltd v Richardson Roofing Co Ltd, another recent case where the requirements in PD 6A were not observed, will not “ferret around” in the correspondence to try and discern sufficient indication.

It is also important to ask that party whether there are any limitations to their agreement to accept service by email. This point may easily be overlooked but, as the judgment here demonstrates, it is an important feature of the safeguards provided by the rules and to which parties will be held by the court.

In acknowledging that this result could appear harsh in circumstances where the late service was no fault of the claimant herself, the judge warned that this approach is justified by the need for strict adherence to the rules on service and limitation. A similarly strict view has been taken in other recent cases, such as McAlpine. While no doubt many will be hoping that the rules on service will be revisited, perhaps with a view to a default presumption of service by email, until then, it cannot be emphasised enough that practitioners miss the provisions of PD 6A at their peril.

This article was first published on Practical Law Dispute Resolution blog 20th September 2022.

Our thinking

  • In-House Insights: Legal operations at work - how to do more with less

    Megan Paul

    Events

  • International Arbitration Conference 2024

    Events

  • Syma Spanjers and Francesca Heath-Clarke write for People Management on tackling discrimination against young female workers

    Syma Spanjers

    In the Press

  • HR magazine quotes Isobel Goodman on second jobs and HR obligations

    Isobel Goodman

    In the Press

  • Cy-près engaged to revive the “spirit” of the long-forgotten “English Method”

    Jennifer Doggett

    Insights

  • Property Week quotes Lauren Fraser on the Supreme Court case of A1 Properties v Tudor Studios RTM

    In the Press

  • UK Government AI Regulation Response & Roadmap – Is the Government behind the wheel?

    Mark Bailey

    Insights

  • Noni Garratt-Wall takes part in interviews on our Firm's rebrand and marketing strategy

    In the Press

  • The Daily Telegraph quotes Nick Hurley on the surge of unexplained absences in the workplace

    Nick Hurley

    In the Press

  • Remote Hearings – factors to consider

    Richard Kiddell

    Insights

  • IR35 update: HMRC consultation on proposed mechanism for off-setting tax liabilities

    Hugh Gunson

    Insights

  • Richard Davies writes for City AM on the lessons that the Premier League can learn from the Super Bowl and NFL

    Richard Davies

    In the Press

  • “Lead Linings Playbook” – A relationship and divorce involving Narcissistic Personality Disorder

    Charlotte Posnansky

    Insights

  • The Evening Standard quotes Kelvin Tanner on the rush to complete Skilled Worker visa applications

    Kelvin Tanner

    In the Press

  • The ongoing fight against fakes

    Charlotte Duly

    Quick Reads

  • Sophie Rothwell writes for Law 360 on the Bullying and Respect at Work Bill

    Sophie Rothwell

    In the Press

  • Property Week quotes Samuel Lear on the Renter’s Reform Bill

    Samuel Lear

    In the Press

  • Charles Russell Speechlys advises Entrepreneurial Food Group on the sale of two food production businesses to The Compleat Food Group

    Hamish Perry

    News

  • The Global Legal Post quotes Mike Barrington on Tesco’s decision to sell its banking practice

    Mike Barrington

    In the Press

  • David Savage writes for Property Week on the case of Triathlon Homes vs Stratford Village Development Partnership and Get Living

    David Savage

    In the Press

  • Community Infrastructure Levy and common pitfalls

    Sadie Pitman

    Insights

  • Abu Dhabi’s New Arbitral Centre Unveils its Rules

    Dalal Alhouti

    Quick Reads

  • Planning essentials case update: when can an enforcement notice against an unlawful use also require the removal of related structures?

    Sadie Pitman

    Quick Reads

  • Dubai Court of Cassation Extends Arbitration Agreement Across Subsequent Contracts

    Peter Smith

    Quick Reads

  • Good news for users of the Madrid System

    Charlotte Duly

    Quick Reads

  • Michael Gove's announcement on transitional period for two staircase requirement for new residential buildings

    Melanie Hardingham

    Quick Reads

  • Nigeria's challenge to US$11 billion award succeeds in the High Court of Justice of England and Wales

    John Olatunji

    Quick Reads

  • Navratri at Charles Russell Speechlys

    Arjun Thakrar

    Quick Reads

  • An important reminder for employers on World Menopause Day

    Isobel Goodman

    Quick Reads

  • UAE Polishes Federal Arbitration Law

    Peter Smith

    Quick Reads

  • A Labour government: what might be in store for personal taxation?

    Sarah Wray

    Quick Reads

  • What next for HS2?

    Richard Flenley

    Quick Reads

  • Mediation as a pillar of dispute resolution: it’s happening, embrace it

    Jamie Cartwright

    Quick Reads

  • A warning to all businesses: significant fine underscores the importance of maintaining workplace Health & Safety

    Rory Partridge

    Quick Reads

  • Office to Lab Conversions: A new lease of life (sciences) for some of London’s offices?

    Quick Reads

  • The Family Fund: Bank of Mum & Dad 2.0

    Vanessa Duff

    Quick Reads

  • The perpetual struggle between the environment, heritage and development: the M&S decision vs 55 Bishopsgate

    Sophie Willis

    Quick Reads

  • Treasury Committee endorses mandatory venture capital diversity policies from 2025

    Lia Renna

    Quick Reads

  • Oops!....I did it again - Britney's third divorce

    Charlotte Posnansky

    Quick Reads

  • Product compliance and Brexit - UK Government concedes to CE markings indefinite recognition

    Jamie Cartwright

    Quick Reads

Back to top