SIR ROBERT McALPINE LTD v RICHARDSON ROOFING CO LTD

For service by email under Practice Direction 6A, the recipient or its solicitor must have given an explicit and clear written indication that email service will be accepted, together with the relevant address. An email address in a notice of acting is ordinarily only a contact detail and does not itself amount to that indication. Nor is a notice of acting a “response to a claim” for the purposes of paragraph 4.1(2)(c). That expression refers to the responsive documents in the response pack under the Civil Procedure Rules 1998. Service rules require certainty, and the court should not infer consent by searching through correspondence or relying on the similarity between court forms.

The claimant brought proceedings concerning liability under a cladding sub-contract. Following stays of the proceedings, an order required the particulars of claim to be served by 5.00 pm on 18 March 2022.

The particulars of claim were sent to the defendant’s solicitors by email before the deadline. The defendant disputed validity because the solicitors had not expressly indicated willingness to accept service by email in accordance with Practice Direction 6A. The claimant relied on an email address in a notice of acting and on earlier correspondence referring to an application as having been served by email. A later hand-delivery was accepted as valid, but the court determined only whether the email service on 18 March was valid.

1. The email service was invalid. The defendant’s solicitors had not previously given the explicit and clear written indication required by paragraph 4.1 of Practice Direction 6A that they would accept service by email. An email address in the notice of acting, alongside postal, fax and telephone details, was merely a means of contact. The form notified the court and other parties who the solicitor was; it did not concern service and could not be read as consent to email service (paras 17–23, 29).
2. The earlier letter stating that an application had been “served” did not cure the defect. Establishing whether that reference implied acceptance of email service would require examination of surrounding documents and correspondence. The practice direction required a clear indication in advance, rather than an inference assembled retrospectively (paras 19–25).
3. The notice of acting was not a “response to a claim” within paragraph 4.1(2)(c). The relevant response documents were the response pack under CPR 7.8, including forms for defending or admitting the claim and acknowledging service. Similarity between the notice of acting and acknowledgment of service did not alter their different functions. The notice of acting was therefore outside the specified category (paras 30–33).
4. The rules governing service must be clear and certain because significant consequences may depend on validity of service. The practical reality that the defendant knew the contents of the particulars and had previously accepted other documents by email did not establish compliance with Practice Direction 6A. Those circumstances might be relevant to another application, but not to the issue decided (paras 18, 28, 34).

There had therefore been no valid service of the particulars of claim by email on 18 March 2022.