In the case of R (on the application of Tax Returned Ltd and others) v Commissioners for His Majesty's Revenue and Customs [2022] EWHC 2515 (Admin) the Administrative Court recently considered the issue of whether service had been validly effected by email.
The case concerned a novel point of construction – whether an agreement to accept service specifying more than one email address complied with CPR 6APD.4.1.
Background
The underlying claim related to an application for judicial review of HMRC's decision to introduce a new mandatory online form for the submission of tax relief claims.
In pre-action correspondence, HMRC stipulated that proceedings should be served by email to a "new proceedings" email address and to the HMRC case officer (Mr Sheikh)'s email address. Another case officer (Mr Kelly) took over conduct of the matter prior to issue of the claim. He requested that the claimants copy him in on correspondence in Mr Sheikh's absence but he did not say that they could use his email address for service. The claimants' solicitors purported to serve the claim form by emailing it to Mr Kelly, copied to Mr Sheikh. It was not sent to the "new proceedings" email address.
Had service been validly effected?
The Administrative Court said no. Mr Kelly did not expressly state that service could be validly effected by an email sent to his email address (and the claimants' solicitors did not contend that such an indication was ever given in writing). The judge concluded that the construction of CPR 6APD.4.1 contemplated that a party agreeing to accept electronic service would provide one email address. Absent that requirement, service would not be valid.
Service was also not validly effected by post since the claim form was not sent to the London address specified by HMRC (it was posted to one of HMRC's regional offices).
However, the judge did authorise alternative service by email to Mr Kelly's email address under CPR 6.15(1) (although whether the court will grant such an order depends very much on the facts of the case).
Where does this decision leave matters in relation to service by email?
Whilst the judgement contains some interesting comments on the interpretation of CPR 6APD.4.1 many commentators and judges consider this is an area which requires clarity.
This is the latest in an increasing number of cases in which the English courts have had to rule on this procedural issue, including the Supreme Court, which we commented upon in our previous article. However, service by email still appears to have the ability to wrong-foot litigants, potentially with serious consequences (for example, invalid service at the end of the limitation period can result in claims becoming statute-barred).
The Civil Procedure Rule Committee, at its meeting on 13 May 2022, stated that it intends to start work on other aspects of service, including electronic service, "very soon". Therefore, we may see a review and clarification of the rules around service by email.
In the meantime, and in circumstances where there is no obligation to alert the other side to defective service, it would appear sensible to obtain written consent from the party to be served that it accepts service by email, the email address to send documents to and any limitations on service (for example, format or size of documents). Consent should also be obtained in good time, particularly in cases where the clock is running down on the limitation period.
When serving documents via email it may be appropriate to set up a group email account (as opposed to sending documents to a single nominated individual) so that all relevant fee earners working on the matter are notified of communications. It may also be helpful to clarify that documents are being sent "by way of service".
