This article provides an update on the mediums that one can serve a claim form and also some of the issues of serving a claim form with modern technology.
CPR Part 6 provides guidance on the service of documents. The most common methods of service are by first class post, document exchange or via email. In our evolving world of technology, by what other mediums can a claim form be served?
This case involved a dispute over jurisdiction. The Claimant and Defendant were in a relationship for nearly 6 years when the Claimant left the Defendant. Before, during and after their relationship, substantial assets had been acquired.
The Defendant issued proceedings in New Zealand. Subsequently, on 26 March 2019, the Claimant issued the claim form in these proceedings (the “Proceedings”) and obtained an order for alternative service. The Claimant served the claim form on the Defendant via Whatsapp message.
The Defendant challenged the jurisdiction of the Court and applied to set aside the order for alternative service and a stay of the Proceedings. The Claimant contended that the Court had jurisdiction pursuant to EU Regulations because the Defendant was domiciled in England on the 26 March 2019. The Defendant denied he was domiciled in England on that date and asserted he was domiciled in New Zealand.
The Judgment concluded that the Claimant was entitled to serve the claim form on the Defendant, and in any event the Judge would have granted permission to serve the claim form out of the jurisdiction. The issue of service via Whatsapp is hardly discussed in the judgment and the method of service appears to be unchallenged.
This case concerned an application for judgment in default of acknowledgement of service and summary disposal pursuant to ss.8 and 9 of the Defamation Act 1996 and CPR 53.2. The Defendant was not present nor represented, nor did he submit any representations to the Court.
The claim form was issued on the 13 April 2017. The Claimant’s solicitor emailed the Defendant asking for an address at which to serve proceedings. He used an email address that had previously been used for correspondence with the Defendant (the “BT Email Address”). The Defendant did not reply directly, but text appeared on the Defendant’s website two days later purporting to be an open letter from the Defendant in response to the Claimant. The letter complained of the Claimant’s treatment of the Defendant and explained why he declined to provide a private address to the firm.
On 19 April 2017, the Claimant sent the letter of claim to the Defendant using the BT Email Address. The Defendant did not reply, but the letter was posted on his website with a lengthy response.
The claim was expanded in July 2017 by a draft Amended Claim Form and a Particulars of Claim. The Claimant was granted permission to serve the Amended Claim Form and a Particulars of Claim by any of three means: (i) by first class post to an address in Hitchin that appeared to belong to Mr Jackson’s daughter (the “Hitchin Address“); (ii) to the BT Email Address; and (iii) via a section of his website called “contact Bob”.
The order made provision for the deemed date of service of the Claim Form and Particulars of Claim, depending on which method of service was adopted. It gave the Defendant “14 days after deemed service of the claim form in which to file an acknowledgement of service, file an admission or file a defence”.
The Judge considered (i) whether the Defendant had received proper notice of the hearing and the matters to be considered at the hearing and (ii) whether the available evidence as to the reasons for the Defendant’s non-attendance supplied a reason for adjourning the hearing. The Judge was happy to proceed in absence of the Defendant because in respect to the above requirements, as to (i) it was quite clear he knew about the nature of the claims as he had posted responses to the letter of claim and Particulars of Claim on his website and he was satisfied that he had been given proper notice of the application and evidence relied upon and (ii) there was nothing by way of evidence to suggest that an adjournment would be appropriate or that it would be unfair to proceed.
It was found that the Defendant had made a deliberate decision to avoid engaging in the proceedings. The Judge concluded that the Claimant was entitled to default judgment for damages for libel and malicious falsehood.
Service via email is very common and is covered by Practice Direction 6A. Despite being a frequently used mode of service, service via email has caused issues as can be seen in the following cases.
The Claimant, a litigant in person, issued proceedings against his former solicitor, the Defendant. The Claimant had been in correspondence via email with the Defendant’s solicitor, but they had not stated that they would accept service via email.
The Claimant served proceedings on them by email. The Defendant accepted that they had received the email, but it was not good service and because the time limit had expired the claim was now statute barred.
The Claimant applied to the Court to retrospectively allow service via email. The Court decided that it was not enough that the Claimant had brought the claim form to the attention of the Defendant, he still needed to comply with the relevant rules.
This is a clinical negligence case where the parties settled on a payment of £250,000 plus reasonable costs. The Claimant’s bill of those costs was circa £700,000. The dispute concerns the giving of a notice of change by the Defendant from the solicitors who conducted the case to the costs lawyers.
The Defendant argued that the default costs certificate should be set aside as he gave a valid notice of change by email before the bill was served and that when the Claimant went on to serve the bill at the former address it was acting irregularly.
The Claimant did not challenge the fact that the notice of change was transmitted by email, but it denies it ever received the email. The Claimant admitted that they had previously had problems with its email address.
Practice Direction 6A, paragraph 4.2, says that a person intending to effect service by email must “first ask the party who is to be served whether there are any limitations to the recipient’s agreement” to accept service by email.
The Defendant argued that it has regularly served documents on the solicitors acting for this Claimant and on solicitors in other cases, and no complaints about non-compliance with PD6A, para 4.2 have been raised before. The Defendant’s solicitors had never received a query relating to limitations on email service.
In addition, they argued that service amongst those who are willing to accept email is commonly done these days without any such formality and that the real issue was the problems that the Claimant was having with their email address.
The Judge found that service of the notice by email was valid. Documents had frequently passed between the two solicitors and it is an accepted practice for large firms of solicitors in clinical negligence work. The Claimant’s awareness of the email was outside of the Defendant’s control and within the Claimant’s control. The Judge stated that “PD 6A, para. 4.2 is a recommendation of good practice only, and a recommendation which has become of historic interest only”.
So, as can be seen, it is important that one is familiar with the Civil Procedure Rules and current case law that govern the service of documents to ensure that one is compliant, and also up-to-date on what modes of service are available for those certain cases that require some creativity.