Leigh Ellis, solicitor at Hall Ellis, examines how claim forms and other court documents should be served, and why emailing is not automatically sufficient for service
In ordinary life, we all deliver or share documents using messaging services (such as email or WhatsApp) and file-sharing services (such as OneDrive or Dropbox).
Delivery of documents by any of those methods however is not adequate to serve a claim form – none of the methods of delivering listed documents above are effective to constitute service in legal proceedings.
Service of claim forms
There are long-standing and precise rules to serve a claim form. The requirements for service of the claim form are treated separately to other court documents.
That’s because the claim form, with the particulars of claim, initiate the entire process of litigation: that is, the process of suing the defendant.
Without service of the claim form, time does not start to run in the proceedings for other events to happen – such as when default judgment may be applied, or when defences or counterclaims are due to be filed.
Service by email
Below is a table for acceptable forms of service, which can also be found at Part 7.5 of the Civil Procedure Rules (CPR).
|Method of service||Step required|
|First class post, document exchange or other service which provides for delivery on the next business day||Posting, leaving with, delivering to, or collection by the relevant service provider|
|Delivery of the document to or leaving it at the relevant place||Delivering to or leaving the document at the relevant place|
|Personal service under 6.5||Completing the relevant step required by rule 6.5(3)|
|Fax||Completing the transmission of the fax|
|Other electronic method||Sending the email or other electronic transmission|
Reading the table above – in particular, the last row – in isolation to the rest of the CPR might lead you to the impression that delivery of documents by email is adequate. However, this is not the case.
Why delivery is not sufficient for service
Part 6, rule 23 of the CPR says: “Where a party indicates in accordance with Practice Direction 6A that they will accept service by electronic means other than fax, the e-mail address or electronic identification given by that party will be deemed to be at the address for service.”
Practice Direction 6A, paragraph 4.1 says: “[w]here a document is to be served by fax or other electronic means the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –
- “that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
- “the fax number, e-mail address or other electronic identification to which it must be sent.”
This means that delivery or sending court documents by email is not service, unless the other party expressly consents to it.
And then Practice Direction 6, paragraph 4.2 puts it beyond doubt:
“Where a party intends to serve a document by electronic means (other than by 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 (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).”
The table found under part 6, rule 9 of the CPR summarises the places at which individuals may be served – none of which refer to email.
Methods of service
The methods of service are:
- personal service, which means handing a document to an individual defendant – or in the case of a company, handing it to a senior member of staff (here, a person with the status named at CPR 6.6(1) can be served)
- a service which provides for delivery on the next business day, for instance:
- first class post
- document exchange (such as DX)
- leaving it at a specified place, specified at CPR Part 6.
- by fax
All methods are subject to conditions, however.
The above methods are subject to the following rules, for example:
- rule 7: service on a solicitor within the UK or within the European Economic Area
- rule 8: where a defendant gives an address (which is unlikely)
- rule 9: default locations
Documents can also be served through other means of electronic communication, where agreed and any method authorised by the court by rule 6.15.
Companies (limited by shares, limited by guarantee, unlimited companies) and limited liability partnerships may be served by:
- any of the methods listed above, or
- any method made available by the Companies Act 2006
Service on solicitors
According to CPR 6.7(1), the solicitors must have a business address in the UK.
Solicitors may be authorised to accept service by their clients. In the absence of communication to the claimant expressly stating that the defendant’s solicitors are authorised to accept service at a named business address of the solicitors, delivery of the claim form to that address is not good service on the defendant.
Simply because correspondence is sent by email between the parties does not mean a court document may be served by email.
The defendants can also nominate an address for service within the UK, at which they live or conduct a business.
Why not email?
The purpose of service is to bring the contents of the claim form to the attention of the defendant.
It’s not enough though that a claim form and the particulars of claim just come to the attention of a defendant.
The CPR in respect of service are made as they are in order to pinpoint a precise time when service took place. That’s because, the period for further steps which may be taken in the proceedings runs from that point in time, for example:
- fixing a date to calculate a limitations period, where it’s relevant
- when the acknowledgement of service is due to be filed
- when default judgment applications may be filed
- the date to file and serve a defence and counterclaim, and
- sanctions and relief-from-sanctions applications, which run from specific dates
Solicitors accepting service must have the instructions of their client in order to do so. In the case of service by email, a specified method can be agreed so that the receipt of court documents may be managed and monitored properly.
Service of documents by email is ‘opt-in’. Simply because correspondence is sent by email between the parties does not mean a court document may be served by email.
Service by email: Supreme Court example
In the Supreme Court case Barton v Wright Hassall LLP  UKSC 12, Mr Barton attempted to serve a claim form by email a single day before expiry of the limitation period under the Limitations Act.
The Supreme Court did not accept that the emailed copy of the claim form could be validated retrospectively.
In his judgment, Lord Sumption said: “Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them.”
That rationale underlies the default prohibition of service of claim forms by email to litigants generally, and not just to solicitors.
In respect of litigants in person, the court said: “Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”
While I can think of some rules of court which are obscure – the provisions relating to service by email are not drafted with clarity in mind – they are nevertheless readily accessible on the internet.
Overseas defendants: individuals and corporations
Special permission is required from a court to serve a document outside the jurisdiction of the English courts: that is, outside the UK.
Defendants in Europe
While the UK remained a member of European Union (EU), individual defendants and companies which had a place of business in a country that was a member of the EU had a special status. That’s no longer the case.
Documents could have been served without the permission of the court, provided that the defendant company had a place of business, or the individual defendant resided, in the EU.
Now, where a document is to be served outside the jurisdiction (which is England and Wales), permission is required from the court to serve it, unless a rule permits otherwise. It requires the claimant to satisfy a jurisdictional nexus with England and Wales. These are commonly known as “jurisdictional gateways”, and appear at Part 6, Rule 36 of the CPR.
In addition, it differs from country to country how much time is allowed from the date of service for the defendant to file and serve:
- an acknowledgement of service
- an admission
Other court documents
Putting service of the claim form to one side, other documents also need to be served in accordance with the rules of court.
Other documents in legal proceedings must also be served on other parties, such as:
- expert reports
- Part 18 requests
- witness statements and affidavits
- application notices, and draft orders
- orders made by the court, including:
- case management directions
- orders for interim payments
- notices of hearings
The safest way to serve documents is by:
- first class mail, with recorded next-day delivery, or
- by fax – a fax machine produces transmission receipts, showing the time of day, and the number it was sent to
Ordinarily, claim forms do not need to be personally served on defendants located in the UK. A copy can be sent by email, but with the recognition that this is “extra” and has no legal effect to constitute service.
By serving the court documents using a number of different methods, a certificate of service (which is a standard court form) can be completed for a number of different modes of service. This in turn increases the likelihood that the document was served on the balance of probabilities, if a dispute arises in respect of service.
Effective service relies on delivering court documents:
- to the correct address or person
- within the limitations period for the claim, and
- with all of the other documents thatare required to be served with the claim form or other document to be served
Some types of orders must be personally served, such as applications for committal for contempt of court. The CPR specifies when personal service of court documents is required.
This article is adapted from one first published on the Hall Ellis website