“Numanoids”, fans of Slough’s greatest contribution to the worlds of new wave, electropop, neo-prog and overblown goth metal melodrama, will recognise the title of this article as a song from Replicas. This 1979 science fiction concept album masterpiece told the tale of how faceless androids rebelled against the human race by stealthily turning everyday life into a totalitarian nightmare of dysfunction, disconnection and disempowerment. Some might say that Gary’s ability to predict what has happened to the civil justice system over the last decade was remarkable, but I couldn’t possibly comment.
Be that as it may, legal practitioners now use technological solutions on an everyday basis which would once have seemed as far-fetched as Mr Numan’s visions. The case of McGilligan v Liverpool Victoria Insurance Company Limited (unreported, 8th April 2022, Chester County Court, DDJ Wheeler), in which I was programmed to represent the defendant, is a salutary warning about the limits which the CPR places on this brave new world.
“I Dream of Wires” - the rules on electronic service
As even the lowliest droid knows, the rules in relation to service of the claim form in part 6 of the Civil Procedure Rules are, in comparison to most of the rest of the CPR, stringent and technical, resembling at times a narrow ledge between bottomless procedural voids. The rules governing when and how electronic service is permitted are no exception.
CPR 6.3(1) states, with deceptive clarity (and an obsession with the cutting edge technological properties of fax machines which harks back to the early 80s peak of Numan-ia) as follows:
A claim form may be served by any of the following methods –
.…
(d) fax or other means of electronic communication in accordance with Practice Direction 6A
However, the actual circumstances in which electronic service can take place are narrowly defined. PD 6A, para 4.1(1) states that
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.
Pursuant to para 4.1(2),
the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.
Furthermore, para 4.2 requires that
[w]here a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).
Whether through fear of rampant service by crazed mechanoids, or some other species of technophobia, those drafting the rules seem to have been anxious to avoid a situation arising where a defendant could be taken unaware by electronic service, and / or where the actual proceedings are not in fact received (even if the covering e-mail, or if we must, fax message, gets through). Hence the creation of rules requiring (in most cases) a defendant’s express consent to being served electronically, and enquiries about any technical barriers to service before it is performed - a failed delivery message is unlikely to be proof of valid service if para 4.2 has not been complied with. The importance of these rules was illustrated by the facts of McGilligan, where the claimant’s approach to service led to the proceedings bursting out on the defendant with all the predictability of the contents of John Hurt’s stomach.
“When the Machines Rock” - the claimant’s approach to service
The unfortunate Ms McGilligan was there in her car, where she felt safest of all,. when the defendant’s insured suddenly materialised into the back of her. In response to her claim for personal injury, the defendant disputed causation on the grounds of low velocity impact, and the case was duly ejected from the portal, like an astronaut into deepest space.
The claimant’s solicitors then purported to serve proceedings (in which the defendant was sued, pursuant to the The European Communities (Rights against Insurers) Regulations 2002) by e-mail. They purported to use a generic address for the defendant’s solicitors which (the fee earner responsible said in a statement filed before the Court) had been used to serve proceedings on many previous occasions, without any objection being raised. (As I suggested during the hearing, this may have had something to do with proceedings coming to the defendant’s attention on those occasions before default judgment was entered). No response was received to the claim made on Ms McGilligan’s behalf. In due course, she obtained default judgment, the matter was listed for disposal, and the first the defendant heard about the issued proceedings was on receipt of the order for the disposal hearing. It applied to set aside judgment.
”We Have a Technical” - the parties’ arguments
The defendant’s application was made on the basis that service had not been effected, properly or at all, and that the Court was therefore required to set judgment aside, pursuant to CPR 13.2. At the hearing, both parties accepted that the Court had to determine firstly whether service had taken place, and secondly whether any service which had taken place was valid for the purposes of CPR 6 and PD 6A.
The defendant argued that proceedings had not been served at all. Evidence was produced to show that the e-mail purporting to serve proceedings had not been received at the e-mail address to which it had allegedly been sent. In the alternative, the defendant contended that any service by e-mail had been invalid, because no indication was given that it was willing to accept electronic service in accordance with PD 6A para 4.1, and because the claimant did not make the enquiries required by para 4.2 prior to the purported service. Instead, the defendant submitted, service should have been performed, in accordance with CPR 6.7, by posting proceedings to its solicitors’ business address, as they had been nominated to accept service.
The claimant relied on the e-mail purportedly sent to the defendant as evidence that service had been performed by e-mail. It was also argued that, because service had previously been undertaken in other claims made against the defendant using the same e-mail address, and there had been no objection, this was sufficient indication that electronic service would be accepted to make it permissible in the present case. Claimant counsel sought to persuade the judge that the defendant’s approach ignored the realities of modern litigation, where procedures such as service by e-mail are necessary to maintain an efficient low cost civil justice system, which (as he could have added, but didn’t) we all dream about but which does not in fact exist.
“Me ! I Disconnect From You” - the judge’s decision
In light of the defendant’s evidence that the purported service e-mail had not been received, DDJ Wheeler was not prepared to find that service had been performed at all. It was perhaps significant that the claimant’s solicitors repeatedly failed to disclose the original e-mail - as opposed to what purported to be a forwarded a copy before the application hearing, before producing what purported to be the original at the hearing itself - albeit an original which was not accompanied by any read receipt.
This finding would itself have meant that the Court was obliged to set judgment aside. However, the judge went on to consider the validity of the purported service in light of the parties’ arguments.
It seemed to him that, pursuant to CPR 6.7, service should have been by post at the business address of the defendant’s solicitors. While he noted the contention that the claimant’s solicitors had used the same e-mail address many times previously without any issue being taken, he said that this was not the point. In his view, PD 6A, para 4.1 sets out a “clear and unequivocal process for service by e-mail”. He agreed with the defendant’s contention that the indication required by para 4.1 had to be given in each particular case, and that an indication given in a previous case by the same defendant was irrelevant. DDJ Wheeler felt that the requirement in para 4.2 was also important, and that, in the absence of any evidence that enquiries had been made, he could not find that para 4 had been satisfied, even if his interpretation of para 4.1 was incorrect.
Conclusions: “This Wreckage”, or “Remind Me to Smile”
Like all the best science fiction, the decision in McGilligan is a reminder of the dangers of human hubris in general, and slavish dependence on technology in particular. The lesson is likely to have been a particularly sharp one for the claimant’s representatives, as the judge not only set aside default judgment, but made directions permitting the defendant to apply via CPR 11 to dispute jurisdiction on the grounds of lack of service. If this further application were to be granted, the likely consequence would be the claimant’s claim being struck out in its entirety. The moral of the story ? “Friends” may well be electric, but the rules on electronic service may not be very friendly to the unwary practitioner.
