It is becoming increasingly obvious that the general rules relating to service of court documents are somewhat outdated. Email is now the most common form of communication for businesses yet service by email under Part 6 of the CPR only allows for service by email if the conditions of Practice Direction 6A are met.
Practice Direction 6A states that it is indeed permissible to serve documents by fax or email but only if the person being served (including if a solicitor is being served) have agreed in writing that they accept service by email and have provided an email address for this purpose.
This is outdated. Email is (in my opinion) more reliable than the antiquated and understaffed Royal Mail who admit to losing up to 500,000 letters a day. Is this a reliable method to serve? Certainly not.
So what happens if someone is to serve such documents without permission? Well, retrospective permission is required under CPR 6.15.
In a recent Court of Appeal case, (Barton v Wright Hassall LLP), Barton (who was a litigant in person) had been using email to write back and forth with the solicitors instructed by the defendant. Barton served the claim by email on Wright Hassall a day before his claim would have been time barred by the Limitation Act.
As a result, Wright Hassall waited for a week before they informed him that they do not accept service of proceedings by email and therefore bad luck Mr Barton, your claim is time barred.
Mr Barton made the application mentioned above for retrospective permission (CPR 6.15). This was however refused by a judge who referred Mr Barton to the civil procedure rules available online.
A very determined Mr Barton appealed (and lost) and then appealed again to the Court of Appeal and made the court aware that Wright Hassall waited until after the expiry of the service period to inform him that they did not accept service by email. Mr Barton was of the opinion that Wright Hassall used underhand tactics.
The Court of Appeal dismissed his appeal and found that Wright Hassall were not using underhand tactics, they were simply abiding to the CPR. Although a litigant in person such as Mr Barton is generally afforded some leniency if they do not understand the CPR in the same way a solicitor should, the Court of Appeal found that being a litigant in person was not enough reason to agree to validate service.
The moral of this article is that the civil procedure rules must be adhered to. Derogate from the CPR at your peril. The rules are in place and a court will rarely agree to bend the rules in your favour. Ultimately, solicitors understand the civil procedure rules (or they should) and whilst it is admirable to be brave enough to be a litigant in person, the odds are unfortunately stacked against you because it takes years of knowledge and experience to be able to undertake effective litigation.
