Serving Court Proceedings ' Could Technology Help?

• Published date: 10 January 2023
• Subject Matter: Technology, New Technology, Fin Tech
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Alec Fair and Evie Dransfield

Alec Fair and Evie Dransfield from our Commercial Disputes team discuss some of the unusual ways that the courts in England and Wales have allowed court proceedings to be served, including using crypto technology and social media, and what the Scottish courts might do when faced with similar requests from parties

Introduction

In the technological era that we now live in, it is worth asking the question: what alternatives are there to serving court documents in hard copy? For instance, could proceedings be served by more unusual methods such as through blockchain or over social media?

In this article, we look at how this question may be answered both in Scotland, and in England and Wales, with reference to a few recent cases that give us an idea of the direction of travel.

Position in England and Wales

In England and Wales, service by email is well established under Civil Procedure Rules (CPR). Court documents can be validly served by "any other means of electronic communication'' [CPR r 6.3(1)(d)] , and this includes email, provided that the recipient has consented to accept service in this way and has given their email address [CPR Practice Direction 6A, para 4.1].

The recent 2022 High Court case of R (Tax Returned Limited and others) v The Commissioners for His Majesty's Revenue and Customs [2022] EWHC 2515 (Admin)] raises a potential hazard with serving proceedings in this way. Paragraph 4.1 of Practice Direction (PD) 6A states that a party must provide the "email address" to which a document must be sent for service to be effective. In this case, the Court held that as the receiving party had provided multiple email addresses, they had not complied with this requirement. The serving party therefore had to make a request for an application for alternative service, which the Court granted. This decision creates a potentially strange position in practice, and it remains to be seen whether subsequent courts will reach the same conclusion.

Serving proceedings by other means

The courts in England and Wales have also granted permission to serve proceedings by other means, including social media. In an unreported 2020 High Court case, solicitors for the claimant could not contact the defendant through letter or email. Instead, they were allowed to serve documents on him through his active Instagram page. As it is not possible to send files through Instagram messaging, they sent the documents via email and first-class post, in addition to sending notices via...