Service of documents by email – follow the court rules
The Civil Procedure Rules do not allow documents to be served via e-mail unless the other side expressly agrees to accept e-mail service. Where there is no express agreement, but documents are served via e-mail anyway, do solicitors have a duty of care to inform the other side of their mistake?
There have been two recent cases which appear to be at odds with each other and which make the answer somewhat unclear. Either way, solicitors and non-lawyers alike should be careful to stick to the court rules.
In the recent case of Barton v Wright Hassall LLP a litigant in person served a claim form on the defendant’s solicitors via e-mail without prior express agreement. The court held that service was invalid; the fact that the claimant was not legally represented was not an excuse because the rules on e-mail service were sufficiently clear and publicly available. The court also held that the solicitors did not owe the claimant a duty of care to warn him that his service was invalid. Accordingly, the Supreme Court struck out Mr Barton’s claim. This was, by all accounts, a harsh outcome for Mr Barton, given that the other side had in fact received his claim.
However, in the later case of Woodward & Anor v Phoenix Healthcare Distribution Limited the court held that the defendant’s solicitors did owe the claimant (who in this instance was represented by a solicitor) a duty of care to warn him that his service was invalid. In this case, the defendant’s solicitors had been deliberately silent to capitalise on the claimant’s solicitors’ mistake, which the court called “playing a technical game”. This goes against the overriding objective of the Civil Procedure Rules – to deal with cases justly and at a proportionate cost. Quite the contrast to poor Mr Barton.
At the moment, there is a balancing exercise that legal professionals must make – whether to capitalise on the other side’s mistakes on the one hand, or politely point them out (potentially to their clients’ detriment) on the other. It looks likely that this issue will be considered further by the Court of Appeal.
However, those who are issuing or defending court proceedings without professional legal advice should be careful. The courts will not necessarily excuse a layperson from complying with the publicly available (but lengthy and sometimes technical) rules that govern civil court proceedings.
Cases: Barton v Wright Hassall LLP  UKSC 12, Woodward & Anor v Phoenix Healthcare Distribution Limited  EWHC 334 (Ch)
For further guidance and information on this topic please visit our commerical dispute resolution page.