Clyde & Co: Firm did not indicate it was willing to accept service by email
London law firm Forsters failed to validly serve a claim form for a claim valued at around £82m, the High Court has ruled.
Roger Ter Haar KC, sitting as a deputy High Court judge, said experienced solicitors “should have understood the fundamental importance of clarity as to whether a defendant’s solicitor had authority to accept service”.
The judge said the “important points to note” from CPR 6.3 and 6.7, together with practice direction 6A, were that “the party to be served or the solicitor acting for that party must have indicated that the party to be served or the solicitor is willing to accept service by electronic means”.
Where a party has indicated that service by email “must be effected by sending a document to multiple email addresses, the document may be served by sending it to any two of the email addresses identified”.
Where a party intended to serve a document by electronic means (other than fax), that party “must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means”.
Forsters, acting for the claimant, relied on a draft form N244, sent to it by the defendants’ solicitors, Clyde & Co, in July 2023, to extend the date for service of the claim form.
Forsters argued that the form was validly served on 2 February 2026 – the agreed deadline for service – when the law firm sent Clyde & Co copies of the claim form and particulars of claim by email.
It sought to hand deliver them to Clyde and its client as well in the following days. Shortly after, some of the claimant’s allegations settled when it accepted a part 36 offer for more than £25m.
Counsel for the claimant argued that the “reasonable construction” of the draft N244 form was that Clyde’s had given “sufficient written notification they would accept service of the claim form”.
Judge Ter Haar said the question was whether “a reasonable person would have understood the contents of the draft form N244 to be a notification that Clyde & Co had been instructed to accept service of the claim form on behalf of the defendant”.
Delivering judgment in Coal Pension Properties v Mace Living and others [2026] EWHC 1248 (TCC), the judge said there was “no express notification” that Clyde & Co was instructed to accept service of the claim form.
The order sought by the N244 related to the date for providing the letter of claim and date for service of the claim form.
“It did not relate to mode of service of the claim form or the person upon whom it was to be served.”
Judge Ter Haar ruled that the N244 “cannot be taken to be a notification by Clyde & Co that it was authorised to accept service of the claim form”.
Forsters further argued that service was valid because of the ‘Covid footer’ used on Clyde & Co emails from early April 2022.
This stated: “COVID-19 outbreak: During the ongoing disruption to working arrangements and until further notice, service of claim forms, application notices and all other court documents and contractual notices should be made only by email.”
Agreeing with Mr Justice Fraser in another case involving exactly the same footer, Judge Ter Haar said it “indicated a willingness to accept service of documents by email (indeed a requirement to do so)”, but Fraser J held that it did not amount to a notification in accordance with CPR 6.7.
Nor had Forsters asked whether there were any limitations to Clyde & Co’s willingness to accept service by such means. The judge said the Covid footer did not mean that service of the claim form by email was valid service.
Clyde & Co introduced a replacement footer with different wording in July 2022.
The judge said that, as with the Covid footer, Forsters failed to make “inquiry of Clyde & Co as to any relevant limitations” on email service and the replacement footer required service to be made upon “two identified email recipients”. Forsters sent its email to one of the addresses but not the other.
Judge Ter Haar dismissed the claimant’s application for a declaration that service was valid.
Forsters declined to comment.
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