The requirements for valid service of documents is something which can easily be overlooked given high volumes of work, last minute developments or competing deadlines. This is especially where some practitioners started their legal career prior to the introduction of e-mail.
Often Partners and senior solicitors are removed from the day to day process of serving documents and rely on these tasks to be delegated to junior staff or secretaries who are not aware of the requirements of valid service. Without specifically being advised otherwise a non-legally trained individual would seemingly reasonably assume service by e-mail or fax was compliant.
A common refrain is that opponents obviously accept service by e-mail as all communications between the parties have been by e-mail and the e-mail address goes directly to the person with conduct of the file.
Another common problem is service being affected by e-mail or fax by close of business as opposed to by 4.30pm as required.
This is also an issue which comes to the fore within costs where a party seeks to obtain a Default Costs Certificate. Technical non-compliance is often overlooked by receiving parties in the normal course of business. However where a party is seeking to recover the totality of their costs claimed, as a result of failure to serve Points of Dispute within 21 days, a paying party will often seek to rely on non-compliance to avoid liability for costs as claimed.
Unfortunately this often only comes to light when a Default Costs Certificate is requested. At this juncture the receiving party is liable for costs incurred as a result of seeking to enforce recovery of costs predicated on invalid service.
Here is a brief reminder of the rules under CPR Part 6 and Practice Direction 6A relating to service other than in respect of the Claim Form (Which is dealt with by CPR 6.3 to 6.19) and dates for deemed service:
Methods of service
- Personal service
- First Class post, DX or other service which provides for delivery on the next business day
- Leaving it as a place specified by 6.23
- Fax or other means of electronic communication
- Companies may also be served by any of the methods of service permitted under the Companies Act 2006
- A Limited Liability Partnership may be served by any method of service permitted under the Companies Act 2006 as applied with modification by modifications made under the Limited Liability Partnership 2000
When documents may be by document exchange
- Where the address provided for service includes a numbered box at a DX
- The writing paper of the person to be served or of the solicitor acting for that party sets out a DX box number, and the party or the solicitor acting for the party has not indicated in writing that they are unwilling to accept service by DX
Service by fax or other electronic means
- The party to be served or the solicitor acting for that party must previously have indicated in writing to the party serving that the party to be served or solicitor is willing to accept service by fax or other electronic means, and the fax number, e-mail address or other electronic identification to which it must be sent.
The following is sufficient confirmation:
- A fax number set out on the writing paper of the solicitor acting for the party to be served. Or a fax number set out on a statement of case or a response to a claim filed with the court.
- An e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service. Or where the e-mail address or electronic indication is set out on a statement of case or a response to a claim filed with the court
- AND Where a party intends to serve a document by electronic means (other than FAX) that the 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)
First Class Post (or other service which provides for delivery on the next business day): The second day after it was posted, left with, delivered to or collected by the relevant service provider provided if that day is a business day. Or if not, the next business day after that day.
DX: The second day after it was left with, delivered to or collected by the relevant service provider provided if that day is a business day. Or if not, the next business day after that day.
Fax: If transmission of the fax is completed on a business day before 4.30pm, on that day; or in any other case, on the next business day after that day.
E-mail (or other electronic means): If the e-mail or other electronic transmission is sent on a business day before 4.30pm, on that day, or in any other case, on the next business day after the day on which it was sent.
Personal Service: If the document is served personally before 4.30pm on a business day, on that day, or in any other case, on the next business day after that day.
To ensure that this issue does not arise you should:
1. Ensure that your opponent confirms in writing that service will be accepted by e-mail
2. Request clarification of any limitations to any agreement to accept service by e-mail
3. Only serve documents by Fax where the fax details are on the opponents headed paper
4. Ensure documents are sent and faxes received by your opponent by 4.30pm