The problems of serving by e-mail have been discussed several times on this blog. The need for the recipient to “opt in” to receipt coupled with potential problems in proving service can give rise to difficulties. I know from e-mails and tweets I have received that many litigators are facing problems with their opponents arguing that service by e-mail is not good service. Here we look at the resolution favoured by the Court of Appeal 12 years ago in R C Residuals Ltd –v- Linton Fuel Oils Ltd & anor.
THE FACTS OF R C RESIDUALS
During the course of litigation the claimant was ordered to serve its expert report by 4.00 pm on the 12th April 2002 or be debarred from relying on the evidence. The defendants’ solicitors note paper stated, clearly, that service by e-mail was not accepted. The document was faxed but arrived at 4.20 pm. A motorcycle courier carrying the hard copy was also delayed. The judge at first instance refused relief from sanctions; this decision was overturned by the Court of Appeal.
THE OBSERVATIONS IN RELATION TO SERVICE BY E-MAIL
The actual rationale of the decision to reinstate is overtaken by the amendment to CPR 3.9 and the Mitchell decision. However what are of interest is the observations made in relation to the defendants’ refusal to accept service by e-mail.
However what is of interest is the shorter supplementary judge of Brooke L.J:-
“34.There is one other matter I should mention. The accountants’ report was ready in Epsom at 2.30 pm. It could easily have been e-mailed in about a minute from their firm to the claimant’s solicitors in central London, and from there to the defendants’ solicitors in Lime Street, to arrive 90 minutes before the guillotine set under the unless order was due to fall. Instead, when the claimant’s solicitors decided at 3.45 pm not to wait any longer for the courier from London, time was taken up in the very slow process of faxing the document from Epsom to Holborn Viaduct, printing it out and then faxing it from Holborn Viaduct to Lime Street, a process which seems to have taken 25 minutes to complete, ten minutes of which were beyond the time set by the judge in his order in February.
35. The defendants’ solicitors would have been entitled strictly to refuse to accept formal service of this report by e-mail. CPR 6.2(1) (e) provides that a document may be served by fax or other means of electronic communication in accordance with the relevant practice direction; and the practice direction to CPR Part 6 provides at paragraph 3.3 that service by other electronic means than facsimile may take place only if three conditions are fulfilled. One of those conditions is that the legal representative who is to be served has previously expressly indicated in writing to the party serving the document his willingness to accept service by this means and has provided his e-mail address or other electronic identification.
36. The defendants’ solicitors set out in their notepaper in uncompromising terms the words, “We do not accept service by e-mail”. On the other hand, if the claimant’s solicitors had offered to send the accountant’s report by e-mail to the defendants’ solicitors on the afternoon of Friday 8 April at 2.30 pm and the defendants’ solicitors had parroted the words set out on their notepaper, no doubt the court would have had little sympathy with them if they had stood on their rights and said they were entitled to require the claimant’s solicitors to produce the document to them by some other means, even if that other means took the better part of two hours to complete.
37. I mention these matters because electronic communication is now becoming more and more common. The defendants’ solicitors are entitled as a matter of general policy to adopt the stance they took, but when one is dealing with emergencies such as occurred that afternoon, if firms of solicitors do take this stance completely rigidly, they may have difficulty in resisting applications for relief from the other side.”
REMEMBER THESE OBSERVATIONS WERE MADE IN 2002
I am certain that all technologists and e-disclosure commentators will state that 2002 was the “Dark Ages” so far as the use of technology is concerned. E-mail was far less common then than it is now.
WHAT IF A PARTY TAKES A SERVICE BY E-MAIL POINT?
A party may be able to stand on its rights. However:
- They will have had the document.
- There will be no prejudice.
There is a strong argument that the service of a document by e-mail when, strictly, this was not authorised, represents the kind of “trivial” breach (of form and not substance) anticipated in Mitchell.
NOT TURNING MITCHELL ON ITS HEAD
Further it could well be that a party taking this kind of point is guilty of exactly the kind of conduct by Mr Justice Leggatt in Summit Navigation. The kind of argument of form, not substance, that turns the aim of Mitchell on its head.
STILL BE CAREFUL…
It remains essential that litigators be careful about service by e-mail. Remember a party has to opt-in to electronic service. The fact that all correspondence is by e-mail does not give rise to any implied acceptance. Check this issue carefully prior to service.