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:
- 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
- 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.
