EMAIL SERVICE ON SOLICITORS THAT HAD ACTED IN OTHER PROCEEDINGS WAS NOT GOOD SERVICE

In Kostakopoulou v University of Warwick & Ors [2025] EWHC 342 (KB) Mr Justice Bourne considered issues relating to service of the defendants by email.  He held that, in the absence of express consent to accept proceedings by email in the current action service had not been effective.

(Accommodation at the University of Warwick (I think you can see the window of my old room…)

“I therefore return to the question of whether there was valid service by email on 28 May 2024. It is quite clear that there was not. The requirements of paragraphs 4.1 and 4.2 of Practice Direction 6A are mandatory and are not subject to exceptions. As Karanja shows, an indication that service by email will be accepted must be specific. Therefore, an invitation to communicate by email, in different proceedings, falls far short…”

THE CASE

The claimant brought proceedings against a number of defendants.  Proceedings were served by email.    The action was struck out on other grounds, however the judge did go on to consider the issues relating to service.

THE JUDGMENT ON SERVICE

The claimant was seeking summary judgment and to set aside the acknowledgements of service that had been filed (a court order meant that filing these did not represent waiver of the service issue).  The judge considered the issues relating to service.

The Claimant’s application(s) for default judgment and/or to set aside the Defendants’ acknowledgments of service in KB-2024-001518

1. 1. In light of my decision on the Defendants’ applications the following issues are academic, but I shall decide them in case they become relevant as a result of any later decision.

1. 1. On 14 June 2024 the Claimant applied for default judgment in claim 1518, stating that the Defendants had failed to file an acknowledgment of service and a Defence by 13 June 2024, that is to say within 14 days of service of the Claim Form and Particulars of Claim as required by CPR 10.3, with the consequence that she was able to enter default judgment under rule 10.2, read with Part 12.

1. 1. The material parts of CPR 12.3 provide:

“(1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered—

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and (b) the relevant time for doing so has expired.

(2) Judgment in default of defence (or any document intended to be a defence) may be obtained only—

(a) where an acknowledgement of service has been filed but, at the date on which judgment is entered, a defence has not been filed;

(b) in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed, and, in either case, the relevant time limit for doing so has expired.

(3) The claimant may not obtain a default judgment if at the time the court is considering the issue— (a) the defendant has applied—

(i) to have the claimant’s statement of case struck out under rule 3.4; or

(ii) for summary judgment under Part 24,

and, in either case, that application has not been dealt with;

… .”

1. 1. This application therefore depends on showing that no acknowledgment of service was filed within the required time. It is common ground that no acknowledgment of service was filed by 13 June 2024. However, the Defendants’ case is that the claim was not validly served on them and therefore time for an acknowledgment of service did not start to run.

1. 1. The Defendants’ applications for striking out and summary judgment have now been dealt with and therefore are no longer an obstacle to the applications for default judgment by virtue of rule 12.3(3), though the outcome makes them academic as I have said.

1. 1. Following a hearing on 24 June 2024, on 19 July 2024 Master Dagnall ordered that, without prejudice to the question of whether valid service had yet occurred, claim 1518 would be treated as having been served on 24 June 2024 with acknowledgements of service to follow by 8 July 2024. The effect of that order (with which the Defendants have complied) was to regularise the onward progress of the claim, but without resolving the issue of whether there had already been valid service by the Claimant and a failure to acknowledge service by the Defendants. It does not affect the issues which I now have to resolve.

1. 1. Turning to those issues, the Claimant purported to serve the claim on all 5 Defendants by email to the First Defendant’s in-house senior legal counsel, Nick Wright, on 28 May 2024, stating:

“Please find attached the sealed claim form that has been notified to you since 28 April 2024 … As the service is performed electronically, there is no need for me to attach 5 pdf files of the same documents.

Please confirm that you will forward these documents to all the individuals since only you know their addresses.

Alternatively, please disclose their addresses to me so that I could serve the documents to them.”

1. 1. The claim had previously been intimated by email to Mr Wright. He had responded to the Claimant on 23 May 2024, stating (among other things):

“I do not have instructions to act for (and, therefore, accept service on behalf of) any proposed party other than the University.

I do not have access to the addresses of any party other than the University. Had I those details, however, GDPR would prevent my releasing those address to any third party, including yourself.”

1. 1. The Claimant also purported to serve the claim on the Fourth Defendant by an email directly to him on 30 May 2024.

1. 1. CPR Part 6.3 allows a Claim Form to be served by any one of a number of methods. They include, by paragraph (d), “fax or other means of electronic communication in accordance with Practice Direction 6A”. Paragraph 4.1 of Practice Direction 6A states:

“(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 e-mail address or other electronic identification to which it must be sent”.

1. 1. I note also that paragraph 4.2 of PD 6A provides:

“Where 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).”

1. 1. In the present case Mr Munden contends that no written indication was given by any Defendant which could possibly satisfy paragraph 4.1, and therefore that no valid service took place before the application for default judgment.

1. 1. The Claimant showed me a document containing a chronology of relevant events and documents and setting out the arguments on which she relies (pages 395-398 of her bundle for the hearing).

1. 1. Whilst there is no document in which any Defendant indicates that it will accept service of a claim form by email at an identified address, the Claimant places heavy reliance on correspondence with Mr Wright relating to the 2021 High Court proceedings.

1. 1. Following the striking out of that claim and the order for costs, as I have said, the First Defendant applied for a charging order (and obtained an interim charging order) in the County Court. But by an order dated 16 November 2023 that Court determined that it had no jurisdiction to grant a charging order. The Claimant then applied for her costs, and wrote to the university’s then solicitors, Wright Hassall, who copied her letter to Mr Wright. He sent an email to the Claimant on 8 December 2023, saying:

“Please correspond directly with me in this matter. Wright Hassall are not instructed to act in respect of this correspondence.”

1. 1. In a further email on 22 January 2024, Mr Wright said:

“I write further to the above matter and attach a Notice Of Change, detailing that the University will now be dealing with this matter in person.

I have served a copy on the court.

Please could you write directly to me form [sic] now on in place of

Wright Hassall.”

1. 1. In her document the Claimant also relies on other uses of email which have taken place as establishing a “pattern of electronic correspondence for legal matters, effectively authorizing email service“. On 29 April 2024 she says that she served an application to rescind Sir Andrew Nicol’s judgment in the 2021 proceedings by email. Mr Wright used email to serve her with documents relating to the County Court charging order proceedings during the first 6 months of 2024.

1. 1. The Claimant also contends that Mr Wright effectively made himself the “conduit” of service on the Second to Fifth Defendants by refusing to provide individual addresses for them and therefore by being a point of contact for them.

1. 1. She also relies on the fact that after the purported service of claim 1518, she asked both Mr Wright and the Fourth Defendant whether they wanted postal copies of the documents and they did not reply.

1. 1. Mr Munden retorts that an agreement for electronic service of proceedings must be precisely that, and that a mere general agreement to communicate by email is not sufficient. That was held by the High Court in R (Karanja) v University of the West of Scotland [2022] EWHC 1520 (Admin), where a statement that a particular email address was “the best contact point for you going forward” did not satisfy paragraph 4.1 of Practice Direction 6A. It is well recognised that rules about service of claims are applied strictly because service is the act by which a defendant is subjected to the Court’s jurisdiction. See, for example, R (Good Law Project) v Secretary of State for Health And Social Care [2022] EWCA Civ 355, [2022] 1 WLR 2339 at [41] per Carr LJ (as she then was).

1. 1. Mr Munden also points out that, even on her own case, the Claimant did not make the enquiry required by paragraph 4.2.

1. 1. The Claimant further submits that even if service of claim 1518 was defective, it was still incumbent on the Defendants to file acknowledgments of service. That is because a party wishing to challenge the Court’s jurisdiction should file an acknowledgment of service and make an application under CPR Part 11: see R (Koro) v Central London County Court [2024] EWCA Civ 94 at [68] per Stuart-Smith LJ.

1. 1. In my judgment, that last point ignores the fact that it is the Claimant who is applying for default judgment. It is not an application by the Defendant for an order declaring that the Court has no jurisdiction, for which filing an AOS is a pre-condition.

1. 1. I therefore turn to the different question of whether the Claimant can enter default judgment because no acknowledgement of service was filed within the time limit which would have applied if service on 28 May 2024 had been valid.

1. 1. That question depends entirely on whether service of the claim was valid. In the very recent case of Saadati v Dastghaib and another [2024] EWHC 3336 (KB), Morris J noted that under CPR 13.2(1), any judgment in default of an AOS must be set aside if it was wrongly entered because any of the conditions in rule 12.3(1) or 12.3(3) was not satisfied. Rule 12.3(1) provides a condition that the Defendant has not filed an AOS within the required time. At [45], Morris J held:

“I have been referred to Credit Agricole Indosuez v Unicof and others

[2002] EWHC 77 (Comm) per Langley J at §18; Shiblaq v Sadikoglu

[2003] EWHC 2128 (Comm) at §§19 to 24 and [2004] EWHC 1890 at §58 [2005] 2 CLC 380; Olafsson v Gissurarson [2006] EWHC 3162 (QB) at §§ 14 to 15, 28 to 29 and [2006] EWHC 3214 (QB) at §19; Dubai Financial Group LLC v National Private Air Transport Services Co Ltd

[2016] EWCA Civ 71 [2016] 1 CLC 250 at §§28-32 and 37-42 and YA II PN Ltd v Frontera Resources Corporation [2021] EWHC 1380 (Comm) at §§14, 53-60. From these authorities, I derive the following propositions:

(1) CPR 13.2 provides for mandatory setting aside of judgment in default. It applies not only where there has been service, but no compliance with the conditions in CPR 12.3, but also where there has been no valid service at all. Failure to file an acknowledgment of service in CPR 12.3(1) means failure to file when under a duty to file, and if there has been no valid service, there is no duty to acknowledge service.

…”

1. 1. It follows that the Court will not allow an application to enter a default judgment which would have to be set aside under rule 13.2 because it was

“wrongly entered”.

1. 1. I therefore return to the question of whether there was valid service by email on 28 May 2024. It is quite clear that there was not. The requirements of paragraphs 4.1 and 4.2 of Practice Direction 6A are mandatory and are not subject to exceptions. As Karanja shows, an indication that service by email will be accepted must be specific. Therefore, an invitation to communicate by email, in different proceedings, falls far short, and Mr Wright did not give an indication (on 8 December 2023 or 22 January 2024 or at any other time) that claim 1518 could be served on the university in that manner.

1. 1. Still less was there any indication that service could be effected on any other Defendant by email, whether to Mr Wright or to any other address.

1. 1. Nor can such an indication be inferred from, or because of, Mr Wright’s refusal (or inability) to provide contact details for other Defendants.

1. 1. Nor does the Practice Direction provide for such an indication to be inferred, or dispensed with, because of any previous practice of communication by email.

1. 1. Nor is there any basis for overlooking the lack of compliance with paragraph 4.2 of PD 6A.

1. 1. In the absence of valid service on 28 May 2024, there was no duty on any Defendant to file an AOS within 14 days thereafter. There are therefore no grounds for the Claimant to be permitted to enter default judgment.

1. 1. I also observe that even if default judgment could have been validly entered, it is highly likely that it would also have been set aside under CPR 13.3 on the basis that the Defendants had a real prospect of successfully defending the Claimant’s allegations of fraud. That is all the more obvious in view of my ruling that those allegations themselves had no real prospect of success.

1. In view of these conclusions, it is unnecessary for me to determine the “deemed” applications to set aside the later acknowledgments of service which were or would have been permitted as a result of Master Dagnall’s order. However, for the reasons given in my previous paragraph, I point out that this is obviously not a case which would have been suitable to be resolved by default judgment in the Claimant’s favour.