The time is right to review the rules on electronic service, says judge in a case involving invalid service of claim form.

A recent decision in the English High Court highlights the continued need for litigants to faithfully abide by the procedures governing the service of claim forms, which are “bright line rules” requiring stricter observance than many others in the Civil Procedure Rules (CPR).[1] In the decision, the judge commented that the present framework governing service by electronic means, such as email, may not reflect modern litigation practice and could therefore be due for reform.

Background

The claimant in Chehaib sought damages alleging clinical negligence on the part of three defendants. On the final day of the validity of the claim form, the claimant’s solicitors emailed the proceedings to all three defendants, overlooking the fact that the second defendant had previously written to the claimant advising that service should not be effected via email but only by post. The first and third defendants were validly served with the proceedings, but the second defendant contested the court’s jurisdiction in its acknowledgment of service.

Email is one of the permitted means of service under the CPR. However, it can be used only if the party to be served or their solicitor has previously indicated in writing that they are willing to be served by email pursuant to Practice Direction 6A of the CPR.[2]

Upon realising this error, the claimant’s solicitors attempted to re-serve the claim form by post the following day and made an application for relief. During the hearing, the claimant relied upon three provisions in the CPR for the application: CPR 3.9 (relief from sanctions), 3.10 (the general power of the court to rectify procedural errors), and 6.15(2) (service of the claim form by an alternative method). In support of the application, the claimant noted the absence of any explicit rule in the CPR governing the validation of service ostensibly by a permitted route but in contravention of the relevant practice direction.

The second defendant in turn submitted a cross-application requesting that the claimant’s claim be struck out for non-compliance with the CPR.

Judgment

The judge, Master Stevens, dismissed the claimant’s application. In her view, a review of the previous authorities clearly demonstrated that CPR 3.9 and 3.10 were not capable of remedying the defective service of a claim form which has now expired. The judge held that, even if it were open to the claimant to rely upon CPR 3.9, the claimant’s application would still fail the well-known Denton test for relief from sanctions,[3] stating that failure to comply with the relevant practice direction in the context of service is a serious and significant breach.[4]

Instead, an expired claim form can be revived only by exercising the specific powers set out in CPR 7.6(3), which the claimant did not rely on, or remedied under CPR 6.15(2).[5] CPR 7.6(3) provides that  an application to extend time that is made after the four-month period of validity of the issued claim form can be granted only if there has been a default by the court in serving the claim form, or the claimant took all reasonable steps to comply with the usual time limits but was unable to effect service. The rationale behind these strict rules is that the date of service of a claim form is determinative of the limitation period for any defence that the defendant might seek to raise. A departure from the ordinary service timeline, which risks prejudicing a defendant’s right to be issued with proceedings within the statutory period of limitation, can be justified only if the claimant promptly takes all reasonable steps to comply with the standard rules.

The claimant in this case sought to rely on CPR 6.15(2), in which the court may authorise that steps already taken to bring the claim form to a defendant’s attention through an alternative method is valid service. However, the judge was unconvinced that there was a “good reason” to exercise this exceptional power. The requirement for a “good reason” under CPR 6.15(1) is not satisfied here because the error stemmed from the solicitors’ mere omission to check the permissible method of service and the service had been left to the very last minute.[6]

Takeaways

The decision is notable for the judge’s acknowledgment that the current “bright line rules” on service by email or other electronic means, as governed by Practice Direction 6A, may be out of touch with current legal practice. This is particularly true “where a defendant has been fully aware of the claim before the expiry of the validity of the claim form, and where service has been attempted prior to expiry”.[7] The judge remarked that “I do question whether the time may be right … for a narrow review of practice direction 6A, by the Civil Procedure Rules Committee, focussed on the use of email for service of originating process on solicitors’ firms. I mention this quite simply due to the significant changes in law firm practice management since the current rules were drafted and the Supreme Court considered them.”[8]

The judge cited the increased emphasis on digitisation in litigation and the effect of the COVID-19 pandemic in accelerating the evolution of law firms’ technological systems, which should allow for more robust means of monitoring email receipts.

Practical Implications

This decision is yet another reminder for prospective claimants to not only pay close attention to service requirements when originating proceedings, but also to consider any prior correspondence with their counterparty laying down the parties’ consent, or lack thereof, to any given method of service. This is especially pertinent if the claim form is close to expiry. Claimants who rely on an incorrect method of service and who let their claim forms expire could face an uphill struggle attempting to revive their proceedings. As this casedemonstrates, the court will be slow to exercise its narrowly defined powers to do so, absent proof of a good reason.

The ruling also highlights that claimants should choose the correct “route” if they need to apply for relief from sanctions or rectify a procedural defect. For example, the judge in this case was not impressed at how the claimant did not rely on other “well-trodden paths” to correct a defect in a claim form,[9] but attempted to bypass the more specific requirements of CPR 7.6(3).

This post was prepared with the assistance of John (Ching Jack) Choi in the London office of Latham & Watkins.

Endnotes

[1] Chehaib v. King’s College London Hospital NHS Foundation Trust & Ors [2024] EWHC 2 (KB), paragraph 8.

[2] Specifically, Practice Direction 6A, paragraph 4.1(1).

[3] Denton v. TH White Ltd [2014] EWCA Civ 906.

[4] Chehaib, paragraph 81.

[5] Chehaib, paragraph 79.

[6] Chehaib, paragraph 94.

[7] Chehaib, paragraph 96.

[8] Chehaib, paragraph 97.

[9] Chehaib, paragraph 9.