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Service by e-mail – How well do you know Practice Direction 6A?

11th November 2021

Service by e-mail – How well do you know Practice Direction 6A?

Reanne Upton, Associate in the Higgs LLP Dispute Resolution team, looks at the practicalities and requirements of service by e-mail in today’s increasingly remote world

Due to Covid, we have all been forced to rely upon electronic communications (even more so than before) and service by e-mail has been a saving grace for us solicitors, especially during the height of the pandemic.

Despite this, and notwithstanding the prevalence of electronic communication in today’s society, service by e-mail has yet to become standardised and remains optional under the Civil Procedure Rules.

We are all aware that when it comes to serving documents by e-mail, Part 6.23(6) of the Civil Procedure Rules stipulates that you must obtain written confirmation from the receiving party that they will accept service by electronic means for service by such means to be effective.

However, the definition of “written confirmation” is much wider than what would naturally be inferred here - and solicitors must take care not to fall short in this respect, especially if tactically they want to avoid accepting service by e-mail.

Part 4.1(1) of Practice Direction 6A offers further guidance on the requirements for written consent, clarifying that:

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;…”

Of course, this is common knowledge for any practising solicitor.

Reading on, Part 4.1(2) of Practice Direction 6A goes on to state:

“the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –

(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;

(b) 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

(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.”

The latter is where I imagine many solicitors are unknowingly caught out and where extra care should be taken when dealing with claims.

Many of the prescribed forms provide for fax and e-mail addresses to be inserted and this can often be completed as simple ‘form filling’ exercise. However, consideration MUST be given when completing these sections as you could find you have given written consent without the intention to do so.

Finally, Part 4.2 of Practice Direction 6A is worth mentioning and is one I commonly see solicitors forgetting to comply with when it comes to seeking written consent. This states that:

“Where a party intends to serve a document by electronic means (other than by fax) that 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)”

There has no doubt been many an occasion where this question has not been asked by the requesting solicitor, and whilst for the most part there will be no issue in this, there is always a small chance that service by e-mail fails due to unknown restrictions at the recipients’ end.

Any prudent solicitor would therefore be wise to be alert to this provision and ask the question in advance when seeking consent.  

 

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