Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Monday, 29 September 2008

But Service in Person is still far more satisfying

The latest amendment to the Civil Procedure Rules comes into effect on Wednesday, and amongst other changes the legal system has acknowledged the White Heat of Technology and recognised that SMTP packets travel slightly faster than First Class mail. Current CPR 6.7(1), which says that for electronic methods other than fax, service of a claim is deemed to have taken place on 'The second day after the day on which it is transmitted' is to be replaced EDIT: for a document other than a claim form by new CPR 6.26, which defines service as taking place:

'If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent..'

- in other words, the same as the rule for fax transmissions. Actually, on careful inspection I see that the fax rule has itself been updated to say that service happens on the same day if fax transmission is completed by 4.30p.m. So, if your accompanying Particulars of Claim are 43 pages long, don't send the trainee to the fax at 4.28... 

UPDATE On a more careful read-through I see that the CPR amendment splits out service of Claim Forms from service of other documents. The above rule applies to documents other than claim forms; the revised rules for claim forms themselves actually slow down service, by applying the 'second business day' rule to all forms of service!

6 comments:

Jakob said...

Does it require any kind of delivery receipt?

Simon Bradshaw said...

No, although the relevant Practice Direction notes that electronic service should normally be used when the other party has indicated willingness to accept service in that form.

It may seem surprising at first, but acknowledgement of receipt isn't required for any form of service. If it was, people could just refuse to do so and claim that they never saw the claim form!

teaparty.net said...

Speaking as someone whose email server runs greylisting, and which therefore refuses all incoming email on first delivery attempt (except for those whitelisted, yadda yadda), this makes me nervous, and grumpy with the inability of those who write law to really understand (at least) technology.

Return receipts are nice, but unreliable and as you point out can be used to circumvent the whole system.

But the law should have been written to require the logging of SMTP receipt by one of the recipient's declared MX records.

"Fred's MUA sent me an email" is simply no proof that I ever got it, particularly not that I got it in a timely manner - in fact, it's pretty much proof that I didn't.

"Sep 26 15:20:19 www sendmail[27026]: m8QE7R0L0XXXXX: to=foo@bar.com, delay=00:12:52, xdelay=00:00:01, mailer=esmtp, pri=575219, relay=mx.foo.com. [11.12.13.14], dsn=2.0.0, stat=Sent (OK id=1KjEB8-YYYYY-ZZ)", on the other hand, is much more compelling.

So, can I make an argument to the effect that the law is simply wrong on this question of fact, or am I stuffed because the law sets out the ground rules, which take precedence even though they are at variance with the facts?

Simon Bradshaw said...

The practicalities of service are governed by Practice Direction 6B, which in its latest form says:

4.1 Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means—
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving—
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1)—
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.


So it is only reasonable to give service by email where the recipient has either explicitly stated willingness to accept via a given address, or has given an address in previous court correspondence. The PD goes on to say:

4.2 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).

In other words, service by email on anyone other than a business with a dedicated legal department or a law firm is very unlikely to be considered valid.

teaparty.net said...

umm, you say "service by email on anyone other than a business with a dedicated legal department or a law firm is very unlikely to be considered valid", but the practice directions say "the party who is to be served or the solicitor acting for that party...".

as i read this, it's opt-in, but once i opt in, proof of sending is still proof of receipt. or do i have it wrong?

Simon Bradshaw said...

You're right; as I noted in my comment to Jakob, acknowledgement of service isn't required, whatever form it takes, so long as the actual service is carried out via what is deemed an acceptable manner.

This seems on the face of it unjust, but my understanding is that it is a pragmatic policy based on the experience that if you make valid service conditional on proof of receipt, then it is too tempting to stall litigation by just denying that you ever actually got the paperwork sent to you. Or, for that matter, by just flat-out refusing to acknowledge it at all.