Given Covid-19 I am struggling to serve the claim form and the defendant will not agree to service by email. Can I just serve it by email and then rely on CPR 3.10 to validate service?
Assumption: it is assumed that you have already advised the court that you will serve the claim form rather than choosing the default position that the court serve the claim form.
A claim form is an originating process of the Court and special rules apply for service. Therefore, it is important to try to serve in a compliant manner within primary limitation.
It will be recalled that CPR 3.10 provides the Court a general power to rectify errors of procedure; however, there is a question as to whether a failure to serve originating proceedings at all properly can be characterised as a mere error in procedure.
A closely analogous question was considered in Integral Petroleum SA v SCU-Finanz AG  EWHC 702 by Mr Justice Poppelwell who was prepared to find that a failure to comply with the requirements of CPR PD 6A was an error of procedure in serving the Particulars of Claim by email and this was a failure to comply with a rule of Practice Direction which fell within CPR 3.10.
However, whether the same approach would be taken in relation to the claim form remains to be seen. The better approach would be to apply ideally prospectively for permission to serve by email under CPR 6.15 in the alternative to dispense with service under CPR 6.16.
However, these are unlikely to assist where primary limitation has either expired or is about to expire by the time the application is determined.
Service by email is permitted under CPR 6.3 but it is subject to limitations set out in CPR PD 6A, para 4.1 that it is only available where the receiving party permits or has agreed to service by email. Even where such service is permitted or agreed, there is still a requirement to check any limitation on the size or format of documents (CPR PD 6A para 4.2).
However, if the other side is refusing to accept service by email and some aspect of Covid-19 makes other methods of service unavailable, then it is important to consider what steps to take to ensure valid service of the claim form. The best course is to make a prospective application for an order for alternative service under CPR 6.15. This means that the application must be made before the expiry of the period for validity sending the claim form. The approach of the court under CPR 3.15 is quite flexible and on an application may allow for service by email. However, whether the court will make such an order will depend on the evidence adduced to support the application. Covid-19 is likely to provide fertile ground for the type of reason and evidence that will be required for the court to make such an order. Prior to making the application it is a good idea to serve the claim form by email in advance and in the application request the court to make an order pursuant to CPR 6.15(2) that the service of the claim form by the email already sent constitutes good service. Also remember to provide the court with a draft order complying with CPR 6.15(4).
Whether an application is made under CPR 3.10 or CPR 6.15, the focus will be on whether there was a good reason to provide permission to serve by email or validate service already given informally.
In Abela v Baadarani  UKSC 44,  1 W.L.R. 2043,  6 WLUK 739, the Supreme Court had set out the following principles: the test was whether, in all the circumstances, there was good reason to order that steps taken to bring the claim form to the defendant’s attention amounted to good service. If a defendant has had proceedings brought to their attention, limitation has not expired and there are good reasons for preferring email service then the Court is likely to either grant permission or alternate service or validate the steps already taken.
The issue of validating service of the claim form by email was considered again by the Supreme Court in Barton v Wright Hassall  UKSC 12. The court refused to validate service of the claim form by email by a litigant in person on the basis that there was no good reason to validate service retrospectively; distinguishing Abela v Baadarani. An important consideration in that case which was argued as a retrospective application under CPR 6.15(2) for service of the claim form by email, was that primary limitation had expired. Thus, the effect of allowing the appeal would have been to deprive the defendant of a limitation defence. The provisions in CPR 3.10 do not appear to have been considered and this accords with the orthodox position that service of the claim form is not a mere procedural defect.
Where there are exceptional circumstances it is possible to dispense with the need for service altogether under CPR 6.16. Covid-19 may yet provide precisely that type of exceptionality but it should not be relied upon, particularly where a claimant has left it to the last minute to serve.
The general position in accordance with Barton v Wright Hassall is that avoiding the effect of limitation will not be a good reason to validate service retrospectively; loss of a limitation defence will be precisely the type of prejudice to a defendant that augurs against relief.
This article was first published by LexisPSL.