Service of the claim form by email will only be valid under the civil procedure rules if the defendant agrees to service by that method. There was no general suspension of the rules in relation to this during lockdown. However, two recent cases demonstrate the judiciary's apparent willingness to accept that service should be taking place by email where the defendant's office is not fully staffed, even where the defendant has not agreed to accept service by email.
Check and check again
In Stanley v London Borough of Hamlets, the claimant phoned the defendant's in-house lawyer in mid-February 2020 to ask if the defendant would accept service by email. He was advised that it would not and that service had to be by post.
Service was deemed to take place on 27 March 2020, but the defendant's employees were working from home by then, following lockdown on 23 March. There was a skeleton staff at the defendant's offices on 27 March "but they are not familiar with court proceedings".
The defendant therefore failed to respond and default judgment was obtained. However, the defendant succeeded in setting aside default judgment.
Knowles J found that he had jurisdiction to set aside default judgment because the defendant had a real prospect of winning and there was also "some other good reason": namely, "the unprecedented national health emergency". The judge was critical of the claimant's solicitor for failing to contact the defendant again to see if it had received the posted claim form:
"The world shifted on its axis on 23 March 2020 and it was incumbent on him as a responsible solicitor and an officer of the court to contact the [defendant] to acknowledge that the situation had changed, and to discuss how proceedings could best and most effectively be served".
That was a worrying decision for claimants. The claimant here had served the claim form in accordance with the rules. Even if the defendant had agreed to service by email, the rules do not require service in that way and a claimant can normally choose to serve by post instead. Furthermore, there were some staff present at the defendant's office and instructions might have been given as to what to do with claim forms (although the judge may have been influenced by the fact that service here took place very shortly after the nationwide lockdown).
The extraordinary circumstances of the lockdown resulted in the claimant, and not defendant, effectively bearing the risk of ensuring that service by post remains practical and appropriate. The claimant here should have checked again about service by email when it came to serve after 23 March.
Authorising service by email
Shortly after this case came HC Trading Malta v Savannah, which went in favour of the claimant. On 16 April 2020, the claimant's solicitors emailed an application by notice for summary judgment on the defendant's solicitors, at the same time asking them to confirm that they would accept service by email of the application (and any future documents) in light of the pandemic. No reply was received, although the defendant's solicitors eventually advised that they were not instructed to take part in the summary judgment application.
Henshaw J held that there was good reason to authorise email service under CPR r6.27 and r6.15:
"in circumstances where the documents were served on the Defendant's solicitors of record; the Covid-19 pandemic made service by email more reliable and safer than attempting to use postal or personal service; and the Defendant's solicitor's responses made clear that they had received and were fully aware of the contents and nature of the application and accompanying documents".
Although the court does have a discretion to authorise service by an alternative method under CPR r6.15, it is not clear from the judgment why service by post could not have been effected in accordance with the rules (with appropriate measures being put in place by the defendant).
Before Covid-19, the position had been clear: service of the claim form by email would only be valid if the defendant had agreed to accept service electronically. Although that rule has not changed, the courts have been sympathetic to arguments – from either claimant or defendant – that service should have been effected by email during lockdown.
Over the next few months, parties could find themselves in difficult situations. The general lockdown has eased but regional restrictions have started to be put in place to combat local flare-ups. It is always worth asking the other side to accept service by email. As these cases illustrate, where consent is not given, it may be incumbent on the claimant to check again if the position changes, or else it may be worth asking the court to approve service by email to ensure that delivery is effective.