Two recent cases, one in the Court of Appeal, the other in the Supreme Court, have created significant uncertainty around the acceptability of email service. It seems that there may now be a disparity between the CPR and the Party Wall Act 1996, despite the similarities in the wording of the relevant provisions for the two regimes.
Knight v Goulandris
The first case was the Court of Appeal’s decision in Knight v Goulandris, handed down on 20 February 2018.
This was a party wall dispute in which the appellant, Mr Knight, had built a basement extension to his house in Belgravia, involving the extension of a party wall. Damage was caused and Mr Knight and his neighbour, Mr Goulandris (the respondent), each appointed surveyors to determine its extent. Under section 10(1)(b) of the Party Wall Act 1996, they appointed a third surveyor. The third surveyor made an award, which Mr Goulandris appealed in the Central London County Court.
Mr Knight argued that the appeal was out of time. The appeal was issued on 17 September 2015 and, according to Mr Knight, the 14-day time limit under section 10(17) had expired on 15 or 16 September 2015.
On 2 September 2015, the third surveyor had emailed the award to both parties’ surveyors. Mr Goulandris’s surveyor had forwarded the email to him at 23:19 with the award attached as a PDF. Mr Goulandris read it the next day. Also on 3 September 2015, Mr Goulandris’s surveyor received a hardcopy in the post, but no hardcopy was sent to Mr Goulandris.
The questions for the court to resolve were:
- When was the third surveyor’s award served on Mr Goulandris?
- Did the surveyor’s email constitute service on Mr Goulandris?
Meaning of section 15(1) of the Party Wall Act 1996
Section 15(1) of the Party Wall Act 1996 sets out the methods by which notices or documents “may be served on a person”. It does not include email service. However, section 15(1A) adds that electronic communication can constitute service “but only if the recipient has stated a willingness to receive the notice or document by means of electronic communication” and not withdrawn that statement.
In the County Court, it was held that the email did not constitute valid service because the methods of service listed in section 15(1) were exhaustive, hence the need for section 15(1A).
However, this decision was overturned in the Court of Appeal, with Patten LJ noting that the question was purely one of statutory interpretation, for which little or no weight can be attached to the fact that most members of the profession (and the government) considered the list of service methods in section 15(1) to be exhaustive. It was held that the word “may” in section 15(1) need not be read restrictively, in accordance with Longmore LJ’s dissenting judgment in Hastie and Jenkerson v McMahon [1990] 1 WLR 1575.
Patten LJ also relied on Ener-G Holdings plc v Hormell in support of his permissive interpretation. In that case, Lord Neuberger had been faced with a clause providing that a notice “may be served by delivering it personally or by sending it by pre-paid recorded post”. He held that this was a permissive clause and that the specified methods simply served to pass the burden of proving whether a notice had been served from the server to the recipient.
Barton v Wright Hassall LLP
On 21 February 2018, just a day after Knight v Goulandris, the Supreme Court gave its judgment in Barton v Wright Hassall LLP.
In that case, the provisions of the CPR dealing with service were tested in the context of a litigant in person. Mr Barton had sent his claim form and response pack by email to the defendant’s solicitors on the last day before the expiry of the limitation period. The solicitors wrote back to say they had not indicated acceptance of service by electronic means, in accordance with CPR 6.3(1)(d) and 6A PD paragraph 4.1(1), and that the claim was now expired.
Meaning of CPR 6.3
CPR 6.3(1) provides that a claim form “may… be served by any of the following methods…” and provides for electronic communication, with similar caveats as in section 15(1A) of the Party Wall Act 1996.
The Supreme Court (Lady Hale and Lord Briggs dissenting) held that service had not been validly effected and that the claimant therefore lost, notwithstanding the clear similarities between the wording of CPR 6.3(1) and section 15(1) of the Party Wall Act 1996. The Supreme Court did not consider Knight (given the timing, this is not unsurprising), nor the question of whether the word “may” is permissive in the context of CPR 6.3(1) or whether the list of service methods is exhaustive.
What does this mean in practice?
Therefore, it could be that:
- The judgment in Knight v Goulandris has already been superseded and is not good law.
- The CPR and the Party Wall Act 1996 are two different regimes with distinct rules for electronic service of documents, despite their similarly worded provisions.
The difficulty with the first conclusion is that the arguments and authorities central to Knight were not considered in Barton and there is plainly no discussion of party wall matters. It is also notable that in Lord Briggs’ dissenting judgment (with which Lady Hale agreed) he took a similar line to Lord Neuberger in Ener-G Holdings, in placing significant importance on the fact that the documents had in fact come to the recipient’s attention.
The difficulty with the second conclusion is that the Court of Appeal in Knight was not confining itself to Party Wall Act cases. For example, the authorities relied upon related to consent orders and commercial contracts. Patten LJ’s reasoning seems to apply equally to Party Wall Act 1996 cases as to other areas of law.
Whichever of the two conclusions is correct, it is inescapably true that the law on electronic service now suffers from some uncertainty. That is the unavoidable result from a 3-2 majority Supreme Court judgment, where the minority judgment accords with the reasoning of a unanimous Court of Appeal.
Until there is authority clarifying the interplay of the two cases, it may be that party wall claims enjoy uniquely permissive rules relating to service. That said, in light of Barton it may be worth taking a belt and braces approach when serving electronically in Party Wall matters – perhaps also serving in hard copy – anything less may invite a challenge further down the line with Barton being cited by the other side.
