Email: Modernisation push
Parties or their solicitors “unreasonably refusing to accept electronic service” could become a tactic of the past under reforms put out by the Civil Procedure Rule Committee (CPRC).
A consultation [1] put out by the committee is looking to modernise service of process – and finally banish faxes from the rules.
The rules currently permit service on a party or their solicitors by fax, e-mail or other electronic means. However, unless an order for alternative service is obtained under part 6.15, the consent of the party being served is required to use electronic service.
The consultation said: “In a limited number of cases, serving parties have attempted service by electronic means, only appreciating after the expiry of the limitation period that the agreement of the party being served was required for this method to be used.
“More commonly, parties find themselves put to additional expense and delay by parties or their solicitors unreasonably refusing to accept electronic service even though they may have been communicating in that manner for some time.”
The CPRC said it considered permitting electronic service where there has already been electronic communication pre-action without the need for their prior consent.
“However, this is not a straightforward proposition. For example, although able to communicate electronically, some unrepresented parties may only have limited digital access and be unable to download large documents or access sites which host them.
“Moreover, although legal representatives may not encounter the same technical issues, their role may be limited to initial pre-action advice and correspondence.
“Making those representatives responsible for the transmission of proceedings to former clients may be burdensome and a particular disincentive for those providing pro bono legal assistance in contentious matters.”
Instead, it is consulting on two “relatively modest changes” to the current service rules. The first would require lawyers who have confirmed they are authorised to accept service on their client’s behalf to accept service by electronic means without the need for further confirmation of their consent to it.
The second would remove reference to service by fax. “In light of the proliferation of e-mail, the CPRC considers this outdated,” the consultation said.
The CPRC said it recognised that practitioners may have concerns about documents being served at e-mail addresses which were not continuously monitored but said its proposal “seeks to meet that concern by prioritising the use of those e-mail addresses specified by the practitioner”.
But it would be “concerned” if the proposal had the unintended consequence of disincentivising parties or their solicitors from agreeing to accept service at all.
The consultation also seeks views on how else service would be modernised.