Serving documents by email

[NOCAB]

Hello,

I have recently advised the courts that the defendant in this case has failed file the DQ on me as per the courts direction twice now. The first instance was that he sent documents by email despite having never agreed this process with me.

Secondly after the court ordered him to send the DQ again he 'said' he brought this round by hand and delivered it and has a photo of the outside of my house to show this. I certainly didn't get it and advised him as such. I suggested the best way (as I am very rarely there) is to serve and send via recorded delivery so we can both be sure I have this document. He emailed and advised on the 17/09/2020 that he would send 'tracked" and file for service at the courts. Given it is now the 07/10/20202 and i STILL haven't had this, I raised an N244 to advise the courts as such requesting a hearing.

This has been granted and the orig case has been vacated.

What is my best stance at the N244 hearing. My expectation is that deadlines must be adhered to and this document (DQ) has been outstanding now for 3 months!!

Any help most welcome.

[R0b]

He doesn't need to deliver it to you personally - the CPR says that it can be delivered to the address or by leaving it there. If the delivery took place before 4.30pm on a business day it is deemed served the same day, otherwise the next business day.

It's irrelevant as to whether you are rarely at the address, because if you listed it as the address for documents to be served then it seems to me he has complied and you've wasted your money paying for a hearing.

If it is found that he has complied, you could be liable for costs.

[NOCAB]

Thanks for this

you seem to have ignored CPR rules which state he must first agree with the claimant that email is acceptable

Secondly he didn’t send the document on the second occasion which is a fact

third he advised in his own email that he would send tit recorded tracked delivery and never did or should be able to provide the tracking record to show this. He also stated he would file for service but hasn’t, so given the number of undeniable issues which all lay at his door, I hope a judge will at least expect him to provide his own evidence to support his own confirmed tracked delivery by producing the tracking number. He can’t because he didn’t send it and nor did he follow any of the other courts directions or comply with CPR rules. As a solicitor he should no better

[R0b]

Well you say as a fact that he didn't send the document on the second occasion, but where's your proof? It is a fact that you admit you are rarely at that that address, it is also a fact he has a photo of himself outside your house (which you could prove as the photo would be time-dated in its metadata) and it is also a fact that you are not required to have it hand delivered to your address before it is deemed served.

Rule 6.26 sets out in the table the deemed service for documents other than the claim form. Specifically, it says:

3. Delivering the document to or leaving it at a permitted address

If it is delivered to or left at the permitted address on a business day before 4.30p.m., on that day; or in any other case, on the next business day after that day.

Defendant only needs to prove on balance of probabilities as to whether it was served or not and if I was a judge, I would be minded to accept that he left the DQ on the second time and the taking of the photo outside your house would be sufficient confirmation of this. Of course, he could have simply went to your house and took a photo without leaving the DQ which would be odd, but it's all about balance so you would need to have something to cast doubt on that position.

Anyway, you might get a sympathetic judge who may order him to deliver it by a specific method, but if you are rarely there, then why would you suggest recorded delivery instead of email? The CPR doesn't require it to be signed before it is deemed delivered and email in my view makes the most sense here.

[NOCAB]

Hi thanks for your reply.

Re his initial failing to agree email service, this is point 1.

Why is it acceptable for him to have failed to agree this service method. By not doing so he failed to adhere to the courts directions. Email service is not acceptable to me as attachments of a certain size fail to open.

Point 2

The photos provided of my house are simply that, and outside picture of my house, not date or time stamped.

Point 3, it was my suggestion to send tracked and recorded because as I am not often there, when I am I would receive a post office card and collect and sign for, so it makes perfect sense and provides cast iron confirmation of receipt. He said he would do this, and file for service but has done neither, so given he undeniably failed to agree email service and has undeniably not sent via a tracked service surely this clearly shows he doesn't follow the rules.

The defendant has failed to provide the documents as directed by the court which is a fact.

[Bluey4543]

There is no requirement to agree to your suggestion that he sends the documents to you tracked and recorded. I've sent plenty of legal documents from the Post office with the free proof of postage supplied by them. The documents would then be deemed served by the court.
You complain of him 'failing to agree to email service', but then expect him to agree, and pay for, your suggested Track and record service.
I would suggest if you carry this on at a hearing, you are in danger of alienating the Judge in your case and getting hit with a costs order.

[NOCAB]

Just by way of an update the judge kicked off as suspected but I won my point re the solicitor not following CPR rules plus I took the opportunity to shut the judge up for wasting time ranting about the nature of my claim as wasting the courts time, when he was doing exactly the same thing and admitted I was right. He did not award costs on either side though and the solicitor involved used a defence barrister who wanted £2000 for his costs. Given no costs were awarded who pays the £2k to the barrister ?

[NOCAB]

Further to my initial post, and following the fact that whilst my first N244 was unsuccessful relating to email service, the defendant has now once again failed to follow the courts directions.

The defendant and myself both agreed that the wording provided in recent directions were wrong, so a joint letter of response was sent to the court identifying what we thought to be an error. Since then we have heard nothing from the courts, so my assumption is that those original orders are still those that need to be followed.

Within the order it states that "the defendant must by 4pm on the 16/11/2020 email the claimant and either (1) agree that, according to the list of documents, the bundle contains all of the documents upon which he relies in this case, or (2) identify by name and provide copies of all such documents, which according to the list of documents, are not in the bundle.

Having not seen any courts directions to override the above, and given this date (16/11/2020) has now passed, the defendant has not carried out this action, and is assuming our challenge to those directions will be accepted.

Can anyone clarify for me what the position is here, as it seems both parties should continue to comply with the initial court directions until any such orders are received to over rule them, and given the date to over rule this particular aspect of the order has past, this constitutes a failure to follow those directions, am I correct?

Thank you

[NOCAB]

Further to the above, I am aware of the 'slip rule' but given that the change required needs to effectively reverse who does what in the court order, I am not sure if the 'slip rule' can be applied in this situation. Forgive me if I am wrong, but the I believe the slip rule is to correct issues like names being misspelt or payment amounts being mis calculated etc, and not to fundamentally change the order. Effectively the order should have stated (we think);

the 'Claimant' must by 4pm on the 16/11/2020 email the 'Defendant' and either (1) agree that, according to the list of documents, the bundle contains all of the documents upon which he relies in this case, or (2) identify by name and provide copies of all such documents, which according to the list of documents, are not in the bundle.

But as this 'change' very clearly puts the onus on a different party and given the date has now passed and the court has not provided any changes to those directions it would be impossible for the claimant in this case to retrospectively comply with those directions.

[NOCAB]

sorry one additional point I have just noticed.

In the request sent to the court the defendant has also asked

There also need to be provision for the Defendant to add documents. Perhaps most significantly is the need for an order regarding witness statements, something that is not provided for in the current order. After this has been done, we as the defendant’s solicitors can paginate a hearing bundle as per para 4 of the 22 October 2020 order.

Yet the order states;

Neither party may rely at the hearing on any report from an expert unless permission has been granted by the court beforehand. No such permission has been given to date.

I am not sure the slip rule should be or could be used to amend fundamental changes like this, or can it?