Assuming service by email will be accepted? Think again!

Michael Wilson & Partners Ltd v Emmott King’s Bench Division (Commercial Court) | [2022] 11 WLUK 123 | 4 Nov 2022

The case of Michael Wilson & Partners Ltd v Emmott is a stark reminder that where there is no agreement between the parties or an indication that service by email could be accepted, service of documents will not be properly effected and authorisation for alternative service under CPR 6.15 may not be granted by the court.

Abstract

The claimant alleged that the defendant’s application for an order to set off a costs order against the claimant’s judgment debt had not been served correctly.

The defendant provided the claimant with a copy of the application by email; however, there was no agreement between the parties for service of proceedings to be effected by email. There was no question as to whether the claimant had received the application as they applied to the Commercial Court office for the application to be listed. The defendant’s position was that the claimant had waived any objection to the service of the application by email, by applying for and obtaining a listing for the application.

Held

The court held that the claimant had not indicated a willingness to be served by email within PD 6A para.4.1 and had always reserved its position as to the validity of service, even when applying for the listing of the application. On that basis, the application notice had not been properly served.

By virtue of CPR 6.27, the court had the power to make an order under CPR 6.15(1) permitting service of the application by an alternative method or at an alternative place where there was good reason to do so. Furthermore, by virtue of CPR 6.15(2) the court could also order that steps already taken to bring the application notice to the claimant’s attention by an alternative method or at an alternative place, was good service.

In this case, the defendant had not made an application under those rules but, in any event, it was difficult to see why there was a good reason to hold that the steps that had been taken, should be treated as good service, in circumstances where there was no agreement from the claimant to accept service by email.

Commentary

In a fast-paced world where remote working, paper-free environments and electronic communication are at the heart of most firms’ professional services, it is important to remember that failure to comply with procedural requirements for service of proceedings may result in unnecessarily poor results, which would undoubtedly be disappointing for clients. If there is any doubt as to whether opponents accept service of proceedings by email, this case certainly highlights the importance of ensuring all necessary steps are taken to effect service in accordance with court rules. Courts have little sympathy for practitioners who make mistakes when effecting service and although there are provisions under which a practitioner can seek the court’s assistance with service, these should not be the fallback position as it may be fatal to the claim.

If you have any questions, or would like more information, please contact, Anemary Kennedy, Solicitor, Property Risks and Coverage.