R (Tax Returned Ltd and others) v Commissioners for His Majesty's Revenue and Customs [2022] EWHC 2515 (Admin)

Entertainment One UK Ltd v Công Ty TNHH Đầu Tư Công Nghệ Và Dịch Vụ Sconnect Việtnam also known as Sconnect Co Ltd [2022] EWHC 3295 (Ch)

HEADLINE SUMMARY

How do you validly serve a claim form by email? CPR PD 6A sets out what you must do, but two recent decisions take very different approaches, leaving significant uncertainty about what's valid under the Civil Procedure Rules. The first decision held that an agreement for service by email will only be valid under PD 6A.4.1 if it specifies a single email address, but the second holds that service could still be valid where multiple email addresses are provided.

R V COMMISSIONERS FOR HMRC

In pre-action correspondence, HMRC had stated that pleadings should be served electronically to a “new proceedings” email address and the email address of HMRC’s solicitor (S). S was replaced by K, who requested that he be cc’d into future emails. Subsequently, the claimant ( C) served the pleadings by email to K, copying S.

The judge held that service was not effective, because:

• PD 6A.4.1 refers to "email address" in the singular
• HMRC had provided multiple addresses for service, meaning that PD 6A.4.1 had not been complied with
• In this situation, C could not undertake good service electronically. They did not have the right to choose between the email addresses provided by HMRC
• Instead, C should have (1) served by one of the other prescribed means in CPR 6, or (2) asked HMRC to clarify which single email address could be used to effect service

ENTERTAINMENT ONE UK LTD V SCONNECT CO LTD

The defendants’ solicitors (S) had confirmed that they would accept service by email where the email was directed to two specified email addresses. Subsequently S tried to argue that service had been ineffective because

• The claimant had not confirmed whether there were any limitations on S's ability to receive service by email; and
• S had provided more than one email address for service.

The judge distinguished the case from R v Commissioners for HMRC and held that service was effective because:

• Whilst the language in PD 6A is mandatory, it does not provide any consequences for failing to comply. Therefore, failing to comply did not necessarily mean that service had been ineffective
• S had agreed to accept service without imposing limitations, had received and acknowledged the email and had admitted that service had been accepted
• It was not disputed that all three purposes of service had been met (following Barton v Wright Hassall)
• It was sensible to provide more than one email address in 2020-21 in light of the COVID-19 pandemic
• On the facts, it would be unjust if service were invalidated. The situation might be different if the claimant had acted unilaterally without knowing whether the method of service was acceptable.

KEY PRACTICAL POINTS

When serving documents electronically the cautious approach, until an appeal or rule change clarifies what's required, is to:

• Ensure you know which single email address should be used for service and ask for clarification if the other side provide multiple email addresses for service, and
• Consider serving documents by two different methods (for example email and post) to cover all the bases - but be conscious of the different deemed dates of service when doing this.

When agreeing to electronic service of documents you should:

• Be cautious about the wording of any written agreement to accept service via email – ensure only one single email address is the “service” email address, and
• Be clear about any limitations on your ability to accept service via email.

Key contact

Lowri Mumford