By Nikki Edwards, partner at London firm Fox & Partners and immediate past president of the London Solicitors Litigation Association, and Benjamin Olley, paralegal at Fox & Partners
Nikki Edwards
Under CPR part 6, English courts have broad discretion to allow non-traditional service when standard methods fail.
CPR 6.15(1) expressly permits an order for “service by a method or at a place not otherwise permitted” if there is a “good reason” to do so. Crucially, CPR 6.15(2) even allows the court to declare retrospectively that steps already taken count as valid service.
In 2013, the Supreme Court helpfully confirmed in Abela v Baadarani [2013] UKSC 44 that the “good reason” test is the sole hurdle for a retrospective declaration of valid service and no additional exceptional circumstances were required.
Historically, non-traditional service would often take the form of email. However, as technology has moved on, judges have increasingly embraced modern communication channels.
There are now reported orders for alternative service by email, text, WhatsApp, social media, voicemail, couriered USB stick and other creative means. It is notable that, where no reasonable alternative exists, the court will often take a pragmatic approach to permit practical methods of service.
With a shift to widespread remote working (in no small part due to Covid-19) and increased digital habits, individuals are more reliably and instantaneously reachable via email, messaging and social media platforms than post.
For a long time, fax was the way to reach someone quickly and cost effectively, especially if they were in a different jurisdiction. Today fax is an alien concept to most, whereas email, WhatsApp and direct messaging are part of everyday life.
However, whilst we wait for the rules to catch up with this change in technology and attitude, it is important that solicitors do not get complacent. Strict compliance remains crucial, especially for the service of proceedings.
It is clear from the case law that, based on the current rules, the judiciary will have perspectives on what constitutes a “good reason” and irrespective of any sympathy they may have, the bar for this will always be higher when asking for forgiveness rather than permission.
As was made clear in the 2024 case of Chehaib v King’s College Hospital NHS Foundation Trust [2024] EWHC 2 (KB), the CPR and the practice direction lay down “bright-line” rules that must be followed. For instance, email service of a claim form is only valid if the defendant (or their solicitor) has agreed to it in writing.
In Chehaib, solicitors sought relief from sanctions or validation of defective service under various CPR provisions, including CPR 3.9, 3.10 and 6.15(2), in respect of proceedings served by email.
Master Stevens refused this and held that a failure to check the permissible method of service did not amount to a good reason, nor did the fact that service had been left until the very last minute.
Benjamin Olley
Despite this decision, it is clear that Master Stevens understood that the current rules do not reflect the world we live in.
She commented: “I do question whether the time may be right… for a narrow review of practice direction 6A, by the Civil Procedure Rules Committee, focused 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.”
With views such as this being expressed, the rule committee did launch a consultation late last year regarding amendment to part 6 and practice direction 6A in relation to service by electronic means.
The London Solicitors Litigation Association submitted a response expressing broad support of the efforts of this consultation to modernise the rules of service, as did a number of other associations. The outcome of this consultation is yet to be seen but it seems likely that we can expect some changes.
Unless and until the rules change, the safest course for litigants remains to exhaust conventional methods of service and seek the court’s permission before using any other method. Retrospective relief is discretionary and far from guaranteed.
Despite acknowledgment that things have moved on technologically, the case law repeatedly reminds practitioners that careless breach of service rules has severe consequences. Defendants are entitled to the limitation defence if service is not correctly effected and judges will not lightly erase that right.