Service of claim by email invalid if recipient provided multiple email addresses

In R (Tax Returned Ltd and others) v Commissioners for HMRC [2022] EWHC 2515 (Admin) the Administrative Court held that an agreement to accept service of a claim form by email is valid only if the recipient nominates a single email address rather than multiple addresses. Where multiple addresses have been provided, the serving party cannot undertake good service by this method.

Background

The claimants, a group of tax agents who submit tax relief claims on behalf of tax payers, applied for judicial review of a number of decisions by HMRC in relation to the processing of tax claims. In pre-action correspondence, HMRC stated that service of legal proceedings “should be made via email to newproceedings@hmrc.go.vuk and [employee S’s email address].” Employee S subsequently went on leave, and Employee K took over conduct of the matter. Employee K emailed the claimants, giving his email address and requesting he be copied into any further correspondence relating to the claim.

The claimants filed the application for judicial review and emailed a sealed copy of the claim form to Employee K, copying in Employee S. A hard copy of the permission application bundle was also sent to HMRC. However, the claim form was not sent to the ‘newproceedings’ email address and no hard copy was sent to HMRC with the application bundle. HMRC applied to set aside the claim form on the grounds that it had not been validly served.

Decision

The judge found that HMRC’s pre-action correspondence meant what it said: for service to be effected by email, the claim form was to be sent to both of the stated email addresses. The question was what legal effect this had.

CPR 6.3(1)(d) provides that a claim form may be served by fax or other means of electronic communication in accordance with Practice Direction 6A. PD 6A.4.1 states:

“Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means –

(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –

(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and

(b) the fax number, e-mail address or other electronic identification to which it must be sent.”

The judge agreed with the claimants that PD 6A.4.1 contemplates that a party agreeing to accept electronic service would provide one fax number, email address or other electronic identification. It would be absurd if parties could submit multiple email addresses to which documents were to be sent before good service had been effected. However, the judge rejected the claimants’ further argument that if more than one email address is provided by the other party, the serving party has the right to elect between them. She said that this would require her to read significant words into PD 6A.4.1 and the approach would be a recipe for uncertainty and confusion in an area that requires clarity.

PD 6A.4.1 provides an option of effecting service by electronic means if the stipulated information is provided. Where a party gives more than one email address for service, PD6A.4.1 has not been complied with, in that the stipulated information has not been properly provided. In these circumstances, the serving party cannot undertake good service by electronic means. In this situation, the serving party has two options: to serve the claim form by one of the prescribed means in CPR 6 or ask the other party to clarify which is the one email address that they may use to effect service, so that PD6A.4.1 is then satisfied. The claimants did neither of these things, so service of the claim form was ineffective.

Key takeaways

This decision raises an important practical point for both parties to proceedings and is not limited to service of claim forms but is also relevant to service of other documents pursuant to CPR 6.20.

Claimants should be particularly alive to the risk that pleadings may not have been validly served within the applicable deadline. If claimants are provided with more than one email address for service, they should clarify which one email address is the effective address for service. Receiving parties should ensure they provide one email address only. If receiving parties would like additional email addresses to receive a copy of the documents being served, they should make absolutely clear that these are for information purposes only, not for formal service. A failure to include the copy addresses will not affect the validity of service.

In this instance, the claimants were able to persuade the court that there was a “good reason” to validate the other steps taken by the claimants as service by alternative means pursuant to CPR 6.15 and applying the factors considered in Barton v Wright Hassall LLP [2018] UKSC 12 and R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355. However, parties should not assume a court will grant this in every case and should take care to ensure the requirements for valid service are complied with.

With thanks to Ella Dixon-Nuttall for her assistance in preparing this post.