Service by email to multiple addresses held to be invalid

In R (on the application of Tax Returned Ltd and others) v Commissioners for His Majesty's Revenue and Customs [2022] EWHC 2515 (Admin), the Administrative Court provided clarification of when service by email is capable of being effective.  The case concerned HMRC’s decision to implement a new mandatory tax form for claiming tax relief on PAYE employment incomes.  However, an issue of wider application related to service of the claim form by email.

Facts

The Claimants sent two pre-action protocol letters, on 18 and 28 March 2022. The Defendant responded to the first letter on 1 April 2022 saying that “service of further correspondence is to be made via email to...” and then gave the email address for Wasif Sheikh, the solicitor who had conduct of the case on behalf of HMRC. The Defendant went on to say that “Service of new legal proceedings is to be made via email to newproceedings@hmrc.gov.uk and [Mr Sheikh’s email address]” (our emphasis). The Defendant responded to the second letter on 11  April 2022, confirming the details were still correct.

Mr Sheikh subsequently suffered two sudden family bereavements and went on a period of leave, so, on 25 April 2022, Mr Kelly took over conduct of the matter – Mr Kelly told the Claimants’ solicitors to ensure that he was copied in to any correspondence relating to the matter but did not say that he would accept service at his email address.

On 11 May 2022, the Court provided the Claimants’ solicitors with a sealed copy of the Claim Form. That same day, the Claimants’ solicitors emailed the sealed Claim Form to Mr Kelly, copying in Mr Sheikh. Mr Kelly responded on 12 May 2022 to confirm that he had received the sealed Claim Form. The sealed Claim Form was never sent to the newproceedings@hmrc.gov.uk address.

The Claimants’ position was that service was validly effected by the email from their solicitors to Mr Kelly and Mr Sheikh attaching the issued Claim Form. The Defendant’s initial position was that the sealed Claim Form would have been validly served by electronic means if it had been sent to both newproceedings@hmrc.gov.uk and Mr Sheikh’s address.

Decision

Mrs Justice Heather Williams rejected both of the parties’ initial positions by taking a close reading of Practice Direction 6A para 4.1 regarding electronic service.

The Court agreed with the Claimants to the extent that clarity and certainty are both key aspects of service and so that “permitting a party to require that for electronic service to be valid the communication had to be sent to more than one, and potentially several, email addresses would be a recipe for confusion.” (para 75).  However, the Court ultimately ruled that, as the Defendants had failed to provide a single email address, PD6A para 4.1 had not been complied with and the Claimants could not have undertaken good service by electronic means. Instead, the Claimants should have either proceeded with service via one of the means prescribed in CPR Part 6, or they should have asked the Defendant to clarify which email address by which they could have effected service (para 76).

The Court therefore found that the Claim Form was not validly served (para 78).

Consequences of the decision

Heather Williams J finding has far-reaching implications for civil litigation as a whole. Service by email has become increasingly common both for litigants-in-person and legal professionals.  However, despite this, the rules are frequently misunderstood (including that service by email is only possible in the first place with the parties' agreement or the Court's permission).

Failing to comply with the rules on service could lead to wasted costs, or, worse, could result in your claim being found to be outside of a limitation period and, thus, time-barred. For professionals, failure to comply could lead to professional negligence claims.

If you are concerned about whether your claim or defence has been handled correctly, or if you have been properly served with legal documents, send us an email, complete our online enquiry form or call us on 020 3432 2477 to find out how our civil litigation solicitors can help.