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Service of a claim by email – time for a change in the rules?

In Chehaib v King’s College Hospital NHS Foundation Trust and Others [2024] EWHC 2 the claimant failed to have its claim survive against one of three defendants after attempting to serve that defendant by email without permission contrary to CPR Practice Direction 6A. However, the judge suggested the relevant rules should be re-looked at given the change in working practices following the Covid pandemic and the increasing digitisation of the litigation process.

What happened in this case?

The claimant issued proceedings against three defendants in relation to alleged clinical negligence. Extensions of time to serve the claim form were agreed between the parties and approved by the court. When consenting to one of those extensions, the solicitors for the second defendant informed the claimant’s solicitors that service of the claim form by email would not be acceptable and the claim form should be served by post. However, the claimant’s solicitors sent the claim form by email to all three defendants on the last day of its validity. After realising their mistake in relation to the second defendant (following receipt of its acknowledgement of service contesting the jurisdiction of the court on the basis that the claim form was no longer valid) the claimant’s solicitors attempted to re-serve the claim form by post but they were out of time.

The claimant’s solicitors applied for (1) relief from sanctions under CPR 3.9, (2) alternatively, for relief pursuant to CPR 3.10 (general power of the court to rectify matters where there has been an error of procedure), or (3) for relief pursuant to CPR 6.15(2) (power of the court to order that steps already taken to bring the claim form to a defendant’s attention by an alternative method is good service). They argued that the breach was not serious or significant because there was no prejudice to the second defendant and the claimant had always communicated with them by email. It was said the breach had not substantively impacted the litigation, no hearing dates had been imperilled, the second defendant had always been aware that proceedings had been instigated and had consented to extensions of time for service. It was also said that it would be a disproportionately punitive sanction and it would have the effect of granting the defendants a windfall if relief was not granted.

Master Stevens dismissed the applications on the basis that previous authorities make clear that CPR 3.9 and 3.10 cannot be used to remedy the defective service of a claim form which has expired, and there was no good reason to exercise the power in CPR 6.15(2) – that power should be used in exceptional circumstances which were said not to apply in this case.  However, she noted she was not the first judge to have some disquiet about the operation of the current rules on electronic service, in particular the requirement that to be able to serve a claim form by email on a firm of solicitors the permission of the relevant firm in writing is required. The judge queried whether the time may be right for a narrow review of Practice Direction 6A in light of the evolution of electronic systems and dramatically changed working practices, including significant changes in law firm practice management.

Comment

This case is an important reminder that it remains the position that a claim form can only be served by email on a defendant’s solicitors if the solicitors have indicated in writing that they will accept service in this way. It should not be assumed that a claim form can be served by email if the parties have previously communicated in that form.

It will be interesting to see whether the Civil Procedure Rules Committee do carry out the review of Practice Direction 6A suggested by the judge in this case. In light of developments in recent years in working practices and the litigation process, such a review would be timely.

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