Serbian Orthodox Church - Serbian Patriarchy v Kesar & Co

Under the Civil Procedure Rules, electronic service is effected by sending the document to the email address at which the recipient has agreed to accept service. Automatic forwarding from a different address does not itself constitute valid service. The court may nevertheless validate the steps taken under CPR 6.27 where there is good reason, assessed in context. Relevant factors include reasonable attempts to comply with the rules, the recipient’s knowledge of the document, prejudice, and the formal character of the communication. CPR 3.10 is a general power and should not be used to circumvent the specific service provisions. A notice commencing detailed assessment is not originating process, and the factors applicable to claim-form service may therefore be applied with appropriate flexibility. An appellate court may permit a new point where it requires no further evidence, causes no different trial, and causes no unfair prejudice.

The Serbian Orthodox Church appealed against the Senior Master’s decision setting aside a Default Costs Certificate for £222,256.85. The certificate concerned Kesar & Co’s liability under a wasted costs order arising from earlier proceedings.

The notice commencing detailed assessment proceedings was sent to an email address previously used by Kesar, but not the address expressly agreed for service. Kesar had arranged for emails sent to the first address to be automatically forwarded to the agreed address. The issues were whether service was valid under CPR 6.20 and Practice Direction 6A, whether the High Court could validate the service under CPR 3.10 or 6.27, whether that argument could be raised for the first time on appeal, and whether the Senior Master had erred in applying the Denton test.

The appeal was allowed.

1. Validity of service. Practice Direction 6A required the email to be sent to the address at which Kesar had agreed to accept service. The natural construction of the provision, supported by the deemed-service and certificate-of-service rules, focused on the address used by the serving party. Automatic and instantaneous forwarding did not make service valid. The formal certainty required by the CPR differed from the more notice-based approach under the former Rules of the Supreme Court.
2. CPR 3.10 and CPR 6.27. CPR 3.10 was a general procedural power. It could not be used automatically to validate defective service where the specific alternative-service provisions in CPR 6.27 applied. The appropriate route was an order under CPR 6.27.
3. New point on appeal. The court permitted the appellant to rely on CPR 6.27. Applying Singh v Dass, the point required no further evidence, would not have altered the hearing below, and caused no unfair prejudice.
4. Good reason. There was good reason to validate the steps taken. The documents reached an email address used by Kesar and configured to receive electronic service. They arrived through the agreed service mechanism, would have been recognisable as formal service if opened, and did not cause prejudice comparable to loss of a limitation defence. The commencement of detailed assessment was a new phase of existing proceedings, not originating process, so the stricter considerations applicable to claim forms did not control.
5. Default Costs Certificate. The Senior Master had been entitled to consider Kesar’s lack of candour, together with earlier procedural failings, when applying the third stage of the Denton test. He had not taken an irrelevant matter into account or exceeded the generous ambit of reasonable disagreement. The Default Costs Certificate therefore stood.

• High Court (Queen’s Bench Division): appeal allowed against the Senior Master’s decision of 23 December 2020. The court held that service was defective but validated the steps taken under CPR 6.27, and upheld the Default Costs Certificate.