High Court Deputy Judge Empowers Email Service on Defendant
If you’re tasked with serving documents, we strongly encourage you to read this article. Particularly when handling individuals without legal representation. To ensure prompt and reliable service and since Mr. O’Leary (the Defendant) can receive documents via email and is willing to do so, an Order for email service is made.
The Applicants obtained judgment against Mr O’Leary in proceedings before the Royal Court in Jersey in Claim No.2019/093. The judgment was handed down on 17 December 2021 (“the Jersey Judgment”) and by order of the same date the Royal Court (among other things) made a declaration that Mr O’Leary was liable to pay equitable compensation for breach of trust to the Applicants in the sum of £32,666,771.
Mr. O’Leary applied for bankruptcy and was set to be discharged in July 2023. The Applicants sought ‘Bacci -v- Green’ relief post-discharge to access Mr. O’Leary’s pension funds. The application was adjourned. Mr. O’Leary, represented by direct access counsel, faced a request for email service by the applicants.
Cohen & Ors v O’Leary & Ors (Re Insolvency Act 1986) [2023] EWHC 1939 (Ch)
This case looks at the difficulties of serving an individual who has not instructed a Solicitor to act for him. LV Mr Pourghadiri applied at the hearing for permission pursuant to CPR 6.27 for his instructing solicitors to serve Mr O’Leary by an alternative method, namely by email to the email address which Mr O’Leary has on occasion used to communicate with them.
LVI The application for permission to serve by email was (on instructions) not opposed by Mr Hill for Mr O’Leary, although he relayed his client’s objection to what was described as “aggressive” correspondence sent by email, typically on a Friday afternoon.
A witness statement filed on behalf of the Applicants provided evidence of the difficulties when it came to serving documents on Mr O’Leary. (b) Hirst 2 also provides evidence that emails sent by the Applicants’ solicitors to Mr O’Leary on 28 April 2023 and 3 May 2023 led to a letter in response from Mr O’Leary, sent by him by email on 4 May 2023, referring to the Applicants’ solicitors’ letters of 28 April and 3 May 2023 “sent to me by email“.
It was clear in the case that on this occasion it was reasonable and sensible to order service via email thereafter. (c) Taken together with the fact that, on instructions from Mr O’Leary, Mr Hill did not oppose the application, I am therefore satisfied that there is no reason to believe that Mr O’Leary has any difficulty in receiving documents by email rather than by post or hand delivery.
There are practice directions to support the use of email service, which given the current use of technology is not unusual. CPR 6.20(d) and Practice Direction 6A provides 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 e-mail addresses or other electronic identification to which it must be sent”.
When interacting with someone representing themselves or those without legal representation, it’s worthwhile to establish the most effective method of communication from the outset. If email is preferable due to the other party’s circumstances, consider agreeing to serve documents via email consistently. This approach can prevent delays and potential disputes over failed service, benefitting both parties.
Samantha Fretwell, Senior Legal Costs Consultant
23.05.2024