In the context of legal proceedings, the word service has quite a special meaning.
It's a term of art.
In ordinary life, we all deliver or make documents available using messaging services such as email, WhatsApp, Telegram, Facebook, and maybe even a file sharing service, such as OneDrive, Dropbox or Google Drive.
Delivery of documents by any of those methods however is not adequate to serve a Claim Form: ie to effect service of the document.
To put it another way, none of the methods of delivering listed documents above are effective to constitute service in legal proceedings.
Service of Claim Forms
There are long standing and precise rules to serve a Claim Form.
In the Civil Procedure Rules, the requirements for service of the Claim Form is treated separately to other court documents.
That’s because the Claim Form, with the Particulars of Claim initiate the entire process of litigation: that is, the process of suing the defendant.
Without service of the Claim Form, time does not start to run in the proceedings for other events to happen, such as when:
- Default Judgment may be applied for, and
- Defences and Counterclaims are due to be filed.
Service by Email
A table for acceptable forms of service appears at Part 7.5 of the Civil Procedure Rules, like this:
|
Method of service |
Step required |
|
First class post, document exchange or other service which provides for delivery on the next business day |
Posting, leaving with, delivering to or collection by the relevant service provider |
|
Delivery of the document to or leaving it at the relevant place |
Delivering to or leaving the document at the relevant place |
|
Personal service under rule 6.5 |
Completing the relevant step required by rule 6.5(3) |
|
Fax |
Completing the transmission of the fax |
|
Other electronic method |
Sending the e-mail or other electronic transmission |
Reading that table - and the last row - in isolation to the rest of the Civil Procedure Rules might lead you to the impression that delivery of documents by email is adequate.
"Delivery" or sending by email is not adequate to effect service.
Here’s why.
Part 6, Rule 23 of the Civil Procedure Rules says:
(6) Where a party indicates in accordance with Practice Direction 6A that they will accept service by electronic means other than fax, the e-mail address or electronic identification given by that party will be deemed to be at the address for service.
Practice Direction 6A, paragraph 4.1 says:
[…] [w]here 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 other electronic identification to which it must be sent; [...]
That means that delivery or sending court documents by email is not service, unless the other party expressly consents to it.
And then Practice Direction 6, paragraph 4.2 puts it beyond doubt:
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).
The table at Part 6, Rule 9 summarises the places at which individuals may be served:
|
Type of Defendant |
Place of service |
|
1. Individual |
Usual or last known residence. |
|
2. Individual being sued in the name of a business |
Usual or last known residence of the individual; or |
|
3. Individual being sued in the business name of a partnership |
Usual or last known residence of the individual; or |
|
4. Limited liability partnership |
Principal office of the partnership; or |
|
5. Corporation (other than a company) incorporated in England and Wales |
Principal office of the corporation; or |
|
6. Company registered in England and Wales |
Principal office of the company; or |
|
7. Any other company or corporation |
Any place within the jurisdiction where the corporation carries on its activities; or |
None of the places of service mention or refer to email.
Service of the Claim Form focuses on the physical location for service.
Methods of Service
The methods are service are:
- personal service.
This is special type of delivery.
It means handing a document to a defendant who is an individual defendant.
In the case of a company, it means handing it to or leaving it with a person with a senior position with the company. Not necessarily a director. One of the people with the status named here can be served
- a service which provides for delivery on the next business day:
- first class post
- document exchange (ie the DX) or
- some other service which provides for delivery on the next business day
- leaving it at a specified place, specified at CPR Part 6.
All of these methods however are subject to conditions, for example:- Rule 7: Service on a Solicitor within the UK
- Rule 8: Where a Defendant gives an address (which is unlikely)
- Rule 9: Default Locations
- by fax
- other means of electronic communication, where agreed
- any method authorised by the court by Rule 6.15.
Companies (limited by shares, limited by guarantee, unlimited companies) and Limited Liability Partnerships may be served by:
- any of the methods listed above; or
- any method made available by the Companies Act 2006.
Service on Solicitors
Solicitors may be authorised to accept service by their clients.
In the absence of communication to the claimant expressly stating that they are authorised to accept service at a named business address of the solicitors:
delivery of the Claim Form by any means or method is not good service on the defendant.
The solicitors must have a business address in England, Wales, Scotland or Northern Ireland.
The defendants are also able to nominate an address for service within the UK at which they live or carry on a business.
Why not Email?
The purpose of service is to bring the contents of the claim form to the attention of the defendant.
It's not enough though that a claim form and the particulars of claim just come to the attention of a defendant.
The CPR requires a precise point in time – a formal step – because time runs for further steps to be taken in the proceedings from that point in time.
The date of service is the point in time for other events, such as:
- fixing a date to calculate a limitations period, where it's relevant
- when the acknowledgement of service is due to be filed
- when default judgment applications may be filed
- the date to file and serve a Defence and Counterclaim, and
- sanctions and relief from sanctions applications run from specific dates
In the case of solicitors accepting service, they must have the instructions of their client to do so. In the case of service by electronic mail, a specified method is able to be agreed so that the receipt of court documents may be managed and monitored properly.
Service of documents by email is "opt-in". Simply because correspondence is sent by email between the parties does not mean a court document may be delivered served by email.
Service by Email: Supreme Court Example
In the Supreme Court case Barton v Wright Hassall LLP [2018] UKSC 12, Mr Barton attempted to serve a Claim Form by email a single day before expiry of the limitation period under the Limitations Act.
The Supreme Court did not accept that the emailed copy of the Claim Form could be validated retrospectively. In the course of the judgment, Lord Sumption said:
Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them.
[…]There are, moreover, particular problems associated with electronic service, especially where it is sought to be effected on a solicitor. A solicitor must have his client’s authority to accept service of originating process. If he has that authority, it will in practice normally cover any mode of service. But a solicitor’s office must be properly set up to receive formal electronic communications such as claim forms. […] 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, including those standing in for the person primarily responsible for the matter when he is unable to attend to such communications as they arrive.
That rationale underlies the default prohibition of service of claim forms by email to litigants generally, and not just to solicitors.
And in respect of litigants in person, the Court said:
Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.
While we can think of some rules of court which are obscure, the provisions relating to service by email are not drafted with clarity in mind, they are nevertheless readily accessible on the internet.
Overseas Defendants: Individuals and Corporations
Special permission is required from a court to serve a document outside the jurisdiction of the English Courts: that is, outside the UK. An Application Notice is required to be filed.
Defendants in Europe: Post Brexit
Individual defendants and companies which had a place of business in a country which was a member of the European Union had a special status, while the UK remained a member of European Union. That's no longer the case.
Documents could have been served without the permission of the court, provided that the defendant company had a place of business or the individual defendant resided in the European Union.
Now, where a document is to be served outside the jurisdiction (which is England and Wales), permission is required from the Court to serve it, unless a rule permits otherwise. It requires the claimant to satisfy a jurisdictional nexus with England and Wales. These are commonly known as a “jurisdictional gateways”, and appear at Part 6, Rule 36 of the Civil Procedure Rules.
In addition, the time allowed from the date of service for the defendant to file and serve:
- an Acknowledgement of Service,
- an Admission,
- Defence,
differs country to country.
Example Case:
In Glencore Agriculture v Conqueror Holdings (2017), Conquerer Holdings delivered notice of arbitration proceedings by email to a junior back office employee. The arbitration proceedings were conducted entirely without the knowledge of Glencore. An award was entered in favour of Conquerer Holdings for US$43,176.
The issue was whether service upon the employee was valid service. It was not. The entire arbitration advanced by Conquerer, along with the award was set aside, resulting in a total waste of money and time to Conquerer.
Other Court Documents
Other documents in legal proceedings must also be served on other parties, such as:
- expert reports
- Part 18 Requests
- witness statements and affidavits
- Application Notices, and draft orders
- Orders made by the court, including:
- case management directions
- orders for interim payments
- injunctions
- notices of hearings
Putting service of the claim form to one side, other documents also need to be served in accordance with the rules of court.
The safest way to serve documents is to serve by first class mail, and by recorded next-day delivery, and by fax. A fax machine produces transmission receipts, showing the time of day, and the number it was sent to.
Ordinarily, claim forms do not need to be personally served on defendants located in the UK. A copy is able to be sent by email, but with the recognition that this is “extra” and has no legal effect to constitute service.
By serving the court documents using a number of different methods, a Certificate of Service (which is a standard Court Form) is able to be completed for a number of different modes of service.
That in turn increases the likelihood that the document was served on the balance of probabilities if a dispute arises in respect of service.
Effective service relies on delivering court documents to the correct address or person, within the limitations period for the claim and with all of the other documents which are required to be served with the Claim Form or other document to be served.
Some types of orders are required to be personally served, such as applications for committal for contempt of court. The CPR specifies the instances where personal service of court documents is required.