Can court documents be served via email?
Email is now one of the most used forms of communication, and it is rare to come across a situation where sending documents via email is either not accepted or not possible. It is efficient, saves on postage costs and means there is a digital trail of communication that can later be relied upon.
In the legal industry, most correspondence between lawyers, clients, and other parties is now via email; however, there are some exceptions. One of these is the service of court documents.
Can court documents be sent via email?
When parties are engaged in court proceedings, there will be times when statements or orders need to be exchanged between parties, often within strict time frames.
Currently, the service of documents for court proceedings via email is generally accepted, but it is not automatic. The Civil Procedure Rules (CPR) set out specific rules on the service of documents, including that court papers cannot be served via email unless you have obtained permission from the recipient.
Where there is no agreement to serve documents via email, CPR rules dictate that they must be served using first-class post, DX, fax or in person. You can read more about service by post below.
What happens if court documents are served via email without permission?
Getting permission from the recipient before serving documents via email is often overlooked. In fact, in a recent case regarding a mortgage repossession case that our property litigation solicitors took on, the matter was struck out because the lender had not sought consent to service by email. This meant that the lender could not repossess the house and had to restart proceedings.
If you serve documents by email without permission from the recipient, the documents may be deemed invalid. The other side may also argue that the service of documents was not effective, and it may be determined that you served the papers late (or not at all).
When is an email notice deemed delivered?
Once you have permission to serve documents via email, the next question might be, “When is it deemed delivered?”
When a document needs to be served within a specific timeframe, or the date of delivery is significant under the agreement you have with the other side, it is worth considering the time you send the document and who has access to the email (i.e. is it a shared and monitored inbox or an individual).
In some cases, it might be appropriate for a copy of the document to be sent via post as well as email. This should be noted by both parties.
Serving documents by post
In the case of Khan v D’Aubigny, which concerned the intended termination of an Assured Shorthold Tenancy (AST) via a section 21 notice, we learnt how crucial it is to be able to prove that the recipient of court documents served by post actually received them.
The Khans (Mrs D’aubigny’s landlords) sought possession, serving a section 21 notice on Mrs D’Aubigny by 1st Class Post and Recorded Delivery. She claimed that the notice was invalid as the Khans had failed to serve her with the EPC, Gas Safety Certificate and How to Rent Guide (the ‘prescribed information’ required per the Housing Act 1998). The Khans stated that their solicitors had sent the documents to her by 1st Class Post and Recorded Delivery weeks before.
At the appeal, the Khan’s lawyers argued that section 7 of The Interpretation Act 1978 interprets the words ‘serve’, ‘give’ and ‘send’ as synonyms of each other and that therefore service by post would be deemed effective. However, the Judge disagreed, stating that section 7 specifically relates to instances where service by post is ‘authorised or required’ and although ‘giving’ the prescribed information by post isn’t expressly prohibited, it’s not expressly authorised either. Therefore, the ‘prescribed information’ cannot be served via post, and it must be given to the tenant.
The Judge determined that there was no argument that the EPC, Gas Safety Certificate and How To Rent Guide were not notices sent under the agreementmand the formal letter serving the ‘prescribed information’ on Mrs D’Aubigny could be considered a formal notice. Ultimately, the Judge decided that mere denial of receipt may be sufficient to deny the presumption of receipt, but only if there is no evidence to suggest notice has been received.
Unreturned letters and those sent by Recorded Delivery will provide more weight to the presumption of effective service by post.
Conclusion
It’s recommended that the word ‘give’ should be literal and that court documents should be hand-delivered wherever possible.
Leaving service to post or email where not expressly permitted opens the possibility that service will fail, with unsavoury consequences to follow.
Contact our landlord and tenant solicitors
For common-sense legal advice about a landlord or tenant matter, including serving notice and possession proceedings, we can help. Contact our residential property dispute solicitors on 0117 325 2929 or fill out our online form.