Service by electronic means under review to reduce unforced errors

E-mail has long been the preferred method of communication for law firms, and the Civil Procedure Rules (‘CPR’) have permitted service of proceedings by electronic means since the end of the last century.  However, service by e-mail is only valid where the receiving party or their solicitor has expressly consented to it in writing. This requirement has become a frequent pitfall for litigants, particularly those acting without representation.

To ensure that the civil justice system remains accessible, fair, and efficient, the Civil Procedure Rule Committee (‘CPRC’) is consulting on proposed amendments to CPR 6 and Practice Direction 6A, making it mandatory for legal representatives to accept service by electronic means where they have confirmed they are authorised to accept service.

The Current Rules on Service

Under CPR 6.3(1)(d) and 6.20(1)(d) a claim form or any other document may be served by ‘fax or other means of electronic communication in accordance with PD 6A’.

Practice Direction 6A, paragraph 4.1, stipulates that for service by e-mail to be valid, the receiving party or their solicitor must have previously indicated in writing:

• that they are willing to accept service by e-mail, and
• the specific e-mail address for service.

Though intended to protect parties, these provisions – requiring express consent to the service of proceedings by a method of communication which has for a long time been the norm – now appear somewhat anachronistic and illogical to the modern litigant (and whilst a fax number on a firm’s headed paper is deemed consent to service by fax, the mere presence of an e-mail address does not carry the same implication). Moreover, as consent is not required for service by non-electronic means, the rules can present a trap for unwary litigants in person who can be surprised to find that, whilst pre-action correspondence by e-mail was perfectly satisfactory, once in the realm of service of proceedings the use of e-mail is suddenly of no effect.

Since neither a party to litigation nor their representative is under any duty to draw attention to a claimant’s service error, serving wide of the rules can be problematic. It can also be disastrous for a litigant whose time on the serve clock is running out but who believes – because they have transmitted the documents successfully – that their service was good. Challenging a line call is then rarely successful, with the rules on extending time for service unlikely to be of assistance to a litigant by the time their error has been realised.  The current provisions also discourage representatives to accept service by e-mail in certain circumstances where tactical refusal may give them the advantage.

Proposed rule changes

More than 25 years since the CPR first allowed for electronic service, the CPRC is now proposing two key reforms to better reflect modern legal practice and litigants’ reasonable expectations:

• Automatic acceptance of service by e-mail:

Legal representatives who have confirmed they are authorised to accept service would be required to accept service by e-mail, without needing to give separate express consent for that method.

• E-mail recognised as the primary electronic method:

References to service by fax would be removed, reflecting the dominance of e-mail in professional communication.

Importantly, these changes would only apply to representatives who have confirmed they are authorised to accept service. Pre-action e-mail correspondence alone would not render e-mail service valid if authorisation has not been confirmed.

Implications for legal practice

The CPRC’s consultation remains open for comment until 12 September 2025.

As distinct from other procedural steps, compliance with the rules on service of proceedings is absolutely critical because it engages the court’s jurisdiction. As emphasised by the Supreme Court in Barton v Wright Hassall [2018] UKSC 12 — a case involving service by e-mail without prior consent — “a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them.” Clarity and fairness in the rules in this sphere are therefore essential.

With the increased use of service by e-mail comes the heightened risk of an unreturnable serve to an unguarded inbox. Under the proposals, if a defendant representative has not specified a particular e-mail address for service, proceedings may be validly served to the address listed on the firm’s letterhead. That presents a risk that valid service may go unobserved and unactioned, particularly where a significant period of time has elapsed between a defendant confirming their authorisation to accept service (triggering their obligation to accept service electronically) and service subsequently being effected; claimants may also deliberately delay service in the hope of exploiting the rule change to their advantage. Defendant representatives therefore need to be wary. To avoid being caught out it would be a sensible precaution to specify – at the same time as indicating that they are authorised to accept service – the particular e-mail address to which they require service to be effected. As an additional safeguard, the rules already provide that, where a party has indicated that service by e-mail must be effected by sending a document to multiple e-mail addresses, service is validly effected by sending the document to any two of the addresses identified (Practice Direction 6A 4.1(3)). Representatives are likely to make greater use of this option under the new rules to avoid the service of claims going undetected.

The proposed changes aim to modernise the rules on service, reduce technical traps, and better reflect the realities of modern day legal practice. By aligning procedure with litigants’ expectations, the reforms promise to reduce unforced service errors, promoting a more efficient and transparent civil justice system.