Can A Copy of A Notice Be Served by Email?
In Cowthorpe Road 1-1A Freehold Ltd v Wahedally (2017), His Honour Judge Dight considered service of a notice under the Leasehold Reform (Housing and Urban Development) Act 1993 and found that where an Act refers to allowing “copies of notices” in other places but only “a notice” or “the notice” in the relevant section this must mean that “copies” are not permissible for the purposes of that section. The Housing Act 1988 refers to “copies of notices” in many places, but in both Section 8 and Section 21 refers only to “a notice” or “the notice”. By implication therefore service of anything other than the original notice will not be good/lawful service.
However, in the Employment Appeal Tribunal in Wang v University of Keele (2010) (Judge Hand QC found that “written notice” can include “SMS text message, internet based so-called instant messaging, and email”, and that notices required to be sent in writing (in this case a dismissal notice) can be sent via attachment by one of these methods. From a statutory point of view, and coming back to Notices of Seeking Possession, both Schedule 2 and Section 21 of the Housing Act 1988 requires notice under Section 8 or Section 21 respectively to be “in writing” and Sch. 1 of the Interpretation Act extends the definition of “writing” to include “typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form”.
The case of Lescott v Heil which concerned the service of the wrong edition of a How To Rent Guide shows how strict the Courts can be about failure to comply with these rules. The tenant was able to successfully appeal against the making of a Possession Order by showing that the wrong edition of the leaflet was referred to in the Particulars of Claim.
Service of Documents by Email in Court Proceedings
The starting point is that at present the documents can only be served electronically with the agreement of the person receiving the documents. This was dealt with in the County Court case of Fowell-Boston v Lambeth 2020. I wrote a post about this case at the time which can be found here. In that case reference was made to the Supreme Court case of of Barton v Wright Hassal LLP (2018) in which a Claimant served a Particulars of Claim the day before the deadline for doing so expired. It was held that this was not good service as he had not obtained the agreement of the Defendant. This meant that he could not pursue the claim due to the bad service. A nightmare scenario that all litigators fear.
In February 2022 the Law Society Gazette reported that the Dispute Resolution Committee of Birmingham Law Society drew up a petition calling for current ‘cumbersome, inefficient and costly’ rules to end. The article quoted Lord Briggs who stated in the above case of that Barton v Wright Hassal LLP (2018) ‘it may be questioned for how long these constraints upon service upon solicitors by email will continue to serve a useful purpose’. I think that this can be asked about thes service of notices before proceedings as well. Meanwhile the position with both is that anyone thinking they can rely on service of a document by email should be aware of the risks of a Judge treating the document as not having been validly served.