Sir Robert McAlpine Ltd v Richardson Roofing Co Ltd [2022] EWHC 982 (TCC)

In this case, Waksman J considered whether there was valid service in compliance with PD6A.4 when the Claimant served its particulars of claim on the Defendant by email. 

Following service of the Claim Form and after two lengthy stays of proceedings, the Claimant was given until 5pm on 18 March 2022 to serve its particulars of claim. The solicitors sent the particulars of claim to the Defendant by email at 16:19 on 18 March 2022. The Defendant subsequently took the point that this was not valid service in accordance with PD6A.4, because the Defendant had not confirmed that it was willing to accept service by email. The Claimant sought a declaration that the service was valid.

The Claimant argued that the Defendant had previously indicated that it was willing to accept service by email; it had served a stay application and the Claim Form by email without complaint from the Defendant, and had also sent a letter to the court, approved by the Defendant, which referred to the stay application being “served”.

The Claimant further argued that an N434 form completed by the Defendant (which provided an email address for its new acting solicitors) constituted a “response to the claim” and was therefore a sufficient indication under PD6A.4.1(2)(c).

Waksman J rejected the Claimant’s arguments, commenting that it was not the intention of the service rules or practice directions for parties to “ferret around the correspondence for other documents to try and discern a sufficient indication” for an acceptance of service by email, and that the rules around service needed to be clear and certain:

• “…the answer is very simple. What needs to be done in good time before the service deadline - and in this case there was ample time - is to write to the other party and say whether they accept service by email or not. So it is not an unduly onerous requirement.” [23]

In a world where almost all exchanges (including letters) are sent by email only, this judgment is a good reminder that when dealing with the CPR, a party must have clear permission from the other party in order to effectively serve documents by email, and the consequences of non-compliance are severe. Where there is some uncertainty it may be prudent to serve by the means allowed in the CPR (noting that you may need to be prepared to serve earlier if this required).

Full judgment here.

This case report was written by Oliver Macrae and Jasmine Sharp.