Service by Email

The CA giveth, and the SC taketh away

Two important cases in two days. In both cases, the recipient of a document purportedly served by email had not indicated that that they would accept such service.

In Knight v Goulandris [2018] EWCA Civ 237, the CA was considering whether an emailed Party Wall Act award had been validly served. G contended it had not been; if he was wrong, his appeal against the award was out of time.

Under the common law, a notice is served if it comes to the attention of the receiving party. Section 15(1) of the Party Wall Act 1996 provides that a document to be served under the Act may be served by personal or postal service. the CA considered whether this provision was (a) merely permissive in its use of the word “may”; or (b) required the use of one of the listed alternatives. Authorities in contract cases are divided.

In this case, the CA preferred the permissive interpretation. The award had come to G’s attention, and had therefore been served.

The next day, the SC decided Barton v Wright Hassall LLP [2018] UKSC 12. C, a litigant-in-person, had emailed his claim form to D’s solicitors on the last day for service. The Supreme Court concluded (by a 3-2 majority) that there was no “good reason” for the court to order, under CPR 6.15(2), that this constituted good service. The majority held that an LiP’s ignorance of the rules was no excuse, and that there had been no attempt to serve within the CPR. The minority held that the purpose of the rules on service was to bring the contents of the claim form to the attention of the recipient and to allow defendants to make arrangements for dealing with incoming communications. If this purpose was met, then prima facie there was a good reason for validating service.

Defendants should not feel free to take advantage of a claimant’s error in service of a claim form. The High Court recently decided, in Woodward v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch), that the parties’ duty to co-operate in furthering the overriding objective goes as far as pointing out such errors; and the absence of such co-operation might constitute a good reason for validating service under CPR 6.15(2).

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