A recent string of judgments have emphasised the need to follow correct procedure when serving documents in court cases, as well as demonstrating the court’s proactive and purposive approach when determining the validity of service.
Automatic redirection does not mean automatic validation
The case of Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co concerned the requirements for valid email service in CPR 6.20 and PD 6A.
CPR 6.20 provides that “a document may be served by any of the following methods: … (d) fax or any other means of electronic communication in accordance with Practice Direction 6A”.
Practice Direction 6A, paragraph 4.1, provides as follows:
“… Where a document is to be served by … 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 …”.
In September 2017, the parties agreed to service of documents by email. Neither expressly identified the address to which documents should be served, though the exchange itself was conducted by the respondent using its “short” email address, having previously used another, “”long” email address.
Subsequently, the appellant sent its notice of commencement and accompanying bill of costs to the long email address. By that time, the respondent had put in place arrangements for all emails sent to that address to be immediately and automatically forwarded to the short email address, and so the court documents were duly received at the short address around the time of despatch. The forwarded email containing those documents was not opened, no Points of Dispute were filed, and so the appellant successfully obtained a Default Costs Certificate, which the respondent sought to appeal.
The court found that sending the email to the long address was not valid service: by the natural construction of PD 6A, it was the “sending” of the email to the agreed address that constituted valid service. This was consistent with the deemed service provisions in the CPR and was necessarily premised on the sender’s knowledge, that is, a sender could not rely on automatic redirection or any other process whereby the documents reached the recipient successfully but without the sender’s knowledge.
The appellant alternatively sought to rely on CPR 3.10 to remedy the error or CPR 6.27 to validate service retrospectively. Consistent with recent authority, the court rejected the application of CPR 3.10 on the basis that it must yield to specific CPR provisions on service, but saw “good reason” to validate service retrospectively under CPR 6.27 on the basis that:
- The documents were sent to an email address the respondent had used in the past and automatically forwarded to the correct address.
- The documents were received through the agreed service mechanism.
- The documents reached the respondent by service to a monitored email address set up to receive electronic service of documents.
- It would have been obvious that the email was attempted formal service, had it been opened.
This may be contrasted with the court’s determination of similar issues, albeit on very different facts, in Gregor Fisken Ltd v Carl (Costs), which followed soon after and cross-referred back to Serbian Orthodox Church.
In this case, the defendant’s previous solicitors told the claimant’s solicitors that they were no longer instructed to act, giving defendant’s email address for future correspondence and stating that there was no need to file a Notice of Change as the main proceedings were no longer active. They in fact remained on the record for costs proceedings as the requirements of CPR 42.2 had not been met and the handing down of a judgment does not end the authority of solicitors for a defendant as a matter of law (Lady de la Pole V. Dick (1885)).
The claimant’s costs representatives sent the Notice of Commencement and Bill of Costs by email to the defendant and physically to a property owned by him. Nothing was served upon his solicitors on the record. The defendant did not respond and so a Default Costs Certificate was obtained.
The defendant applied to have this set aside on the basis that the Notice of Commencement had not been validly served. The claimant, in opposing the application, sought that the court validate service pursuant to CPR 3.10 or, alternatively, CPR 6.27.
Consistent with Serbian Orthodox Church, the court found that invalid service could not be saved by CPR 3.10. Where the court differed was in its application of CPR 6.27. Noting that the cases were very different, the court held that an order under CPR 6.27 would not be justified: while the error in sending served documents to an old email address in Serbian Orthodox Church was of no material effect, here rectifying what the court described as multiple, basic and avoidable procedural errors would prejudice the defendant and was not in accordance with the overriding objective or the proper administration of justice.
Depart from court forms at your peril
In YA II PN Ltd v Frontera Resources Corporation, the claimant had obtained permission to serve the claim on the defendant in Texas. The claimant struggled to identify the address for service as the defendant’s company filings were out of date. As such, the claim was personally served on a former director of the defendant, with no acknowledgment of service or defence following thereafter. The claimant obtained judgment in default, which the defendant sought to set aside on the basis of invalid service.
The issue arose from the claimant drafting its own order for permission to serve out of jurisdiction rather than using court form PF6B. That form provides for the claimant to serve at a specified address “or elsewhere in [country in which service is to be effected]“. The wording in bold was not included in the bespoke order and the court held that failure to serve on the specified address meant service had not been effected in accordance with the permission granted. The claimant could not rely on CPR 6.40(3)(c) (which provides that service out of the jurisdiction may be by any method permitted by the law of country where service is to be effected) to rectify this as such provisions were “subject to any restrictions or limitations which may be imposed by the order”. Further, the manner in which the service was effected in Texas was found not to be valid service under local law.
However, the court decided that there was good reason for retrospectively validating service as the claim had been provided to the current CEO by the former director with a warning that they must respond, and that the method for service relied upon was permitted under the Hague Service Convention (to which both the UK and US are signatories).
The judge set aside the default judgment and set a time for filing the acknowledgment of service.
The scales of justice
Finally, Garcia v Garcia is perhaps the first case to involve the use of scales (and not just those of justice) when determining the validity of service. Here, the applicant obtained interim mandatory orders against the respondent, his ex-wife, permitting him to enter and reside at his former matrimonial home. The application had initially been made on Monday 19 April 2021 to the Urgent Applications Court in the Queen’s Bench Division, where the order was refused on the basis that the applicant had given no adequate reason why he was unable to give notice to the respondent of the application. The judge indicated that if the respondent was given 48 hours’ notice and then submitted no evidence or reasons why the order should not be made, the court would be minded to make an order granting the application sought.
The application returned on Friday 23 April 2021, with the applicant providing the court with documents including a certificate of service, a certificate of posting of a large letter to the former matrimonial home, and a witness statement. The applicant had stated in his witness statement, verified by a statement of truth, that he had served his application and supporting documents on the respondent. The order was granted and the applicant re-entered the former matrimonial home. This was much to the respondent’s chagrin, as she had not received the papers… the large envelope instead contained a glossy fashion magazine.
The application returned to Fordham J in the same court, conducted remotely, on 5 May 2021. The judge adopted a novel and practical approach to determine the issue by arranging a “live weigh-in” of the documents allegedly posted. The respondent’s solicitor was asked to locate scales and weigh both the set of court documents and the magazine in front of the screen. This proved that an envelope containing the court documents weighed 127 grams and the fashion magazine weighed 297 grams; the latter matching the exact weight stated on the Post Office certificate of posting. The orders were discharged on the grounds that the applicant had deliberately misled the court by using the proof of posting as proof of service of the court documents despite having not done so, seemingly in an attempt to prevent the respondent from submitting any response which may prevent his application from succeeding.
Takeaway points
As well as reminding practitioners of the need to get service right the first time, there are a few useful practical points to consider:
- When agreeing to accept service of documents by email, ensure that the agreement makes sufficiently clear how the service mechanism will operate, and the addresses to which documents should be sent.
- When serving out of jurisdiction, take local law advice on the validity of service in the receiving jurisdiction and consider using court form PF6B or, if not, ensure that any bespoke drafting of an order allowing such service is not unduly restrictive.
- Do not take uncorroborated proof of service at face value (as the courts will not!).
