A High Court judge has thrown out a claim which was served by email without permission – but suggested that the time may be right for a change in the relevant practice direction. 

Master Stevens dismissed the claimant’s application for relief from sanctions after serving proceedings by email rather than post, as the defendant had requested.

The judge found nothing exceptional about the reasons why service was not correct and it was unclear to her why the claimant had waited until the final permitted day to issue proceedings.

But as a postscript to Chehaib v King’s College Hospital NHS Foundation Trust & Ors, Stevens said she was the latest judge to have ‘disquiet’ about the operation of the current rules, where a defendant is aware of a claim but is able to resist it because it is issued incorrectly. She asked whether it might be time for a review of practice direction 6A, which states that a solicitor’s email address may be used for service only if it is explicitly stated this is allowed.

‘The Covid pandemic has accelerated the evolution of electronic systems and dramatically changed working practices,’ said Stevens. ‘Furthermore, civil litigation policy is developing an increasing emphasis on digitisation which is altering how parties conduct litigation.’

She added that most law firms have had to consider new procedures for dealing with correspondence when no fee earners are physically present. Where parties have been corresponding by email already, Stevens suggested, there should be a procedure for ensuring that all communications served to the same email addresses will be monitored.

‘Where service is attempted prior to expiry of the validity of the claim form, the practice direction could be considered ripe for review.’

Sendemail

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The claimant had brought proceedings against three defendants for alleged clinical negligence after private surgery in 2018. After four court-approved extensions, the second defendant told the claimant four weeks before the final deadline that service should be effected by post.

Proceedings were emailed on the final day and only served validly two weeks later once the defendant’s solicitors had flagged up the error.

The claimant applied for relief from sanctions and a declaration that the amended claim form was served validly.

The second defendant argued before the court that the proceedings were now null and void as the claim form expired before proper service. The claimant’s solicitors argued that given email was a permitted method of service generally, the breach was ‘at the low end of serious’. If that argument was unsuccessful, it was submitted the court had discretion to remedy the situation and allow the claim to proceed.

Master Stevens said she was bound by the existing rules and practice direction as interpreted by higher courts. She dismissed the claimant’s applications, adding that the argument had been an ‘exercise in semantics rather than one of substance, albeit that I recognise the effort put into the ingenuity of the approach’.

 

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