Service of a Claim Form by email – get it wrong at your peril

In Barton v Wright Hassall [2018] UKSC 12 Mr Barton, the claimant, who was a litigant in person had been locked in litigation for 12 years against two firms of solicitors. In 2005, the claimant sued the first firm which had acted for him in proceedings relating to ancillary relief following his divorce. The claimant subsequently instructed Wright Hassall, the defendant, to represent him. However, the parties fell out and in May 2007, the defendant was taken off the record on their own application in a dispute over fees. The claimant resisted this application and lost both at first instance and on appeal, costs were awarded against him. The claimant subsequently settled the first set of proceedings against the first lawyers and remained silent for a number of years. However, in 2013 he made two claims against the defendant which included a claim for professional negligence claiming damages. The claimant issued proceedings and elected to serve the claim form himself. A claim form must be served within a four month period. The defendant instructed their own firm of solicitors who sent an e-mail asking the claimant to address all correspondence to them. The e-mail also stated that they would await service of the claim form and particulars of claim. Nothing happened until 24 June 2013, the last day before the expiry of the claim form, when the claimant e-mailed at 10.50am all of the necessary papers for service of the claim form. The claimant received an automatic reply with numbers to contact if the case was urgent but he did not do so. No substantive reply was made until 4 July when the solicitors for the defendant said that they had not agreed to service by e-mail and so they would not acknowledge service. They also added that the claim form had expired as it was unserved and that the claim was also statute barred.

The Civil Procedure Rules (CPR)

CPR 6.3 together with the accompanying Practice Direction (PD) deal with the permitted modes of service, which include service by e-mail. The rule provides that if serving the claim form by e-mail a solicitor acting for the defendant must previously have indicated in writing to the party serving the claim form that they are willing to accept service by e-mail and provide an e-mail address. The PD also provides that if a solicitor sets out in his correspondence an e-mail address and states that the address may be used for service this will fulfil the procedural requirements. In this case, the solicitor did not agree to service by e-mail nor did they provide an e-mail address for such service.

A claimant who is unable to serve within the four month period under Rule CPR 7.5 has two options:

1. Apply for an extension of time under CPR 7.6. However this is very difficult if you are applying after the event and it is necessary to show that you have taken all reasonable steps to comply with CPR 7.5; or
2. Apply under CPR 6.15 that service by an alternative method will stand as good service.

The Supreme Court Decision

The claimant lost by a majority decision. The Supreme Court considered the basis upon whether they would grant relief from sanction under CPR 6.15.

1. The Supreme Court considered their own decision in Abela v Baadarani [2013] 1 WLR 2043 and stated there were a number of principles to be taken from this case and applied generally. These are: the test is whether in all the circumstances there is a good reason to order steps taken to bring the claim form to the attention of the defendant is good service;
2. Whether the claim form was brought to the attention of the person to be served is a critical factor. The fact the defendant learned of the existence of the claim form cannot, without more, constitute a good reason to make an order under CPR 6.15(2);
3. The question is whether there is a good reason for the court to validate the mode of service used, not whether the claimant had good reason to choose that mode.

Lord Sumption stated when considering this case the main relevant factors were 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 solicitors 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 by the retrospective validation of a non-compliant service of the claim form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached will vary with all the circumstances. It is very much a fact-based assessment. There was no doubt that the defendant’s lawyers were aware of the proceedings and had seen the claim form. However this was not sufficient to satisfy the requirements under CPR 6.15 as detailed in the Abela case. The purpose of the service rules is to bring home to the recipient that he is being served with, rather than just informed about, the existence of the claim form.

The claimant also argued that it would be a breach of his human rights under Article 6 of the European Convention on Human Rights if he was not given relief in relation to this application. This was based on the fact that he was not represented when he attempted to serve the claim form and therefore allowances should be made. The Supreme Court made it clear that the rules governing service were clear and were not difficult to assess. It was the claimant’s failure to obtain the consent for service by e-mail and therefore the claimant had made no real attempt to serve the claim form in accordance with the rules. In addition, by issuing the proceedings and serving at the last minute the claimant had left himself no time to rectify any difficulties. The claimant argued that the defendant’s lawyers were playing technical games and taking advantage of the claimant’s mishap. This was not accepted by the court as they considered that the solicitors would have had to obtain the defendant’s instructions as to whether to deprive themselves of a limitation defence which they were highly unlikely to do.

Comment

The decision made by the Supreme Court was a majority decision with the dissenting judgment given by Lord Briggs who considered there had been a good reason to make an order under CPR 6.15. Both Lord Sumption and Lord Briggs stated that it is desirable that the Rules Committee re-visit the rules on e-mail service to consider whether they are still appropriate. In the meantime the strict rules will apply.