Guidance on service by email
In a world where remote working is the norm, emails are firmly the primary method of business communication. However, when it comes to service of contractual notices or legal proceedings arising from an agreement, it is important to get service by email right to make sure that the service will be valid. Failure to carry out valid service can cause significant delays and increase costs.
Key questions to ask when considering service by email include:
- Does legislation apply to service under the agreement?
- Does the agreement allow for service by email?
- Has the recipient agreed to accept service by email?
- Does the agreement contain a valid email address for service?
- When will the notice be deemed delivered?
- Can the sender obtain sufficient evidence of sending and receipt?
Does legislation apply?
In some situations, the law allows (and sometimes requires) notices to be served by post or by hand. Legislation such as the Companies Act 2006, the Law of Property Act 1925 and the Landlord and Tenant Act 1927 include provisions on service, which apply to agreements within the scope of the legislation. It is important to check these requirements alongside any notice clauses in the relevant agreement, to ensure that email is a valid method of service.
Does the agreement allow for service by email and has the recipient agreed to accept it?
It is important to check the agreement carefully, to ensure that the notice clauses are consistent with each other and allow for service by email. As it can be the case that the agreement includes a ‘boilerplate’ clause excluding service by email but then refers to service by email elsewhere. A recipient also needs to have agreed to accept service via email, and the courts have recently held service to be invalid without this (McAlpine Ltd v Richardson Roofing Co Ltd (2022)).
It is also important to check that the notice clauses cover service of court proceedings or other forms of dispute resolution before serving these via email. As email service related to legal proceedings may be excluded in order to avoid inconsistencies with legal requirements for service, such as those in the Civil Procedure Rules (CPR). Where email service is allowed, any applicable court requirements for service should also be adhered to carefully.
Does the agreement contain a valid email address for service?
The agreement may specify the address to which the notice should be sent, which should include email address(s) if service by email is allowed. If so, it is important to make sure that the email address(es) provided is/are still valid as email addresses change more often than postal ones, and that the inbox(es) will be checked regularly and by someone who will recognise a contractual notice or legal proceedings.
Where service of legal proceedings by email is allowed and multiple addresses are provided for service, it is important to note that the CPR has been updated in light of recent case law on service to more than one email address (R (Tax Returned Ltd v Commissioners for HMRC (2022); Entertainment One UK Ltd v Sconnect Co Ltd (2022)). CPR PD6A 4.1(3) now states: “where a party has indicated that service by email must be effected by sending a document to multiple e-mail addresses, the document may be served by sending it to any 2 of the e-mail addresses identified.”
When will the notice be deemed delivered?
The agreement may specify when notice sent via email will be deemed delivered. This should be considered carefully, especially where a document must be served within a specific or limited timeframe, or the date of deemed delivery has significance under the agreement. For example, there can be wording which means that an email sent outside of working hours or after a given time is not deemed to be received until the next working day. The courts have been willing to take a pragmatic approach on this issue, for example in Elements (Europe) Limited v FK Building Limited (2023) an email sent late in the evening was held to have been received on the same day, where there was no wording in the relevant agreement on deemed service. However, it is preferable to be certain of the position and there are strict rules in the CPR on the timings of deemed service which apply to documents relating to legal proceedings.
There may also be other relevant provisions in the agreement, such as those which make delivery conditional on other steps having been taken. For example, that a copy must also be sent via post or other specified service method. These should also be noted and adhered to where they appear in the agreement in order for the notice to be deemed delivered.
Will there be sufficient evidence of sending and receipt?
It is also important to make sure that there will be evidence that the email was sent. Where the agreement does not contain deeming provisions, evidence of receipt will also be necessary to avoid doubt over when the notice was received. The sender should keep a record of when the email was sent and to whom, and a read receipt can be used and kept on record. There is caselaw on service of notices under the Community Infrastructure Levy (the CIL) which has held that a notice was not served where there were insufficient records of sending and receipt (R (on the application of Trent) v Hertsmere Borough Council (2021)). It is also important to consider that there can be a delay between when an email is sent and the receipt of a failed delivery notice, so where there is a time limit on service, this should be factored in.
Conclusion
The requirements of the CIL are very formulaic, but outside of this specialist area courts have generally taken a more relaxed approach to interpreting the rules of service. But this pragmatic approach has recently been called into question by McAlpine v Richardson Roofing, so it is important to be as confident as possible that service by email will be valid before sending a notice or legal proceedings arising from an agreement using this method.
If you have any concerns about how to correctly serve contractual notice or legal proceedings, or you require advice on drafting notice provisions in an agreement then we can help. Please get in touch with our experts for advice on commercial agreements, contracts and disputes.
This article was originally published in March 2020 and updated in December 2024.
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