It is rare for issues of procedure to reach the Supreme Court but given that the question of effective service is an issue that comes up time and time again for both Claimant and Defendant solicitors the recent views of the Supreme Court are welcomed.
The CPR sets out the methods for service of documents in Part 6. Rule 6.3(1)(d) permits service of a claim form by “fax or other means of electronic communication in accordance with Practice Direction 6A” Take a look at PD 6A and you will see that para 4.1(1) stipulates that the party who is to be served must previously indicated in writing that they are willing to accept service by fax or other electronic means.
Decision by the Supreme Court
A Claimant, a litigant in person, who attempted to rely on the previous course of dealings by email with the defendant solicitors to suggest that they would have read the email and therefore it amounted to good service.
In Barton v Wright Hassall LLP  UKSC 12 Mr Barton emailed his claim to the defendant’s solicitors on the last possible day. Although the defendant solicitors had indicated that they were instructed to accept service, they had not confirmed that they would accept service by email. Mr Barton attempted to persuade the Court to use their discretion in his favour under CPR 6.15(2) – the test being that, whether in all the circumstances, there was good reason to order that the steps taken to bring the claim form to the attention of the defendant was good service. The Supreme Court held that there was not. Those dissenting concluded that as the appellant had fulfilled the step of bringing the claim form to the attention of the person to be served and notifying them that a claim had been commenced then this would prove a good reason for validation of service.
Helpfully, Lord Briggs highlighted that he considered that this was an issue which he considered the Rule Committee should consider to ensure that the current provisions for service by email are sufficiently clear and fair.
It troubles me that the meaning and effect of CPR 6.15 has now been considered by this court, which does not lightly embark upon procedural questions, twice in recent years and that, on this occasion, its meaning has divided the court. While recognising the pressures upon its time during a period of major procedural reform, I hope that the Rule Committee might be able to find time to satisfy itself that this rule, and the provisions in the PD about service by email, still satisfy current requirements, in the context of giving effect to the Overriding Objective, and do so with sufficient clarity.