The claimants were the owners of original artistic works in visual representations of a children’s cartoon character. The first and second defendants were concerned in the production of educational and entertainment videos. The fourth defendant was the founder and CEO of the first defendant and concerned in the second defendant. The claimants brought claims against the defendants for breaches of the claimants’ copyright, infringement of the claimants’ trade mark, and passing off. The defendants’ solicitors having agreed under CPR rr 6.3(1)(d) and 6.7(1) to accept service on behalf of all of the defendants by way of e-mail to two e-mail addresses that they provided, the claimants purported to effect service of the claim form, particulars of claim, and initial disclosure list by e-mail to those addresses. Copies of the documents contained in the initial disclosure list were said to be accessible via a link to cloud storage provided in the e-mail. The two firms were subsequently engaged in correspondence about obtaining access to those documents, in relation to which the defendants and their solicitors experienced multiple problems. The defendants’ solicitors eventually purported to withdraw their consent to electronic service given the use of a link and the issues caused, stating that “the service via the links is non-compliant with the e-mail service we accepted previously”. The defendants subsequently acknowledged service, indicating their intention to contest jurisdiction, and then applied, inter alia, for a declaration that the English court had no jurisdiction to try the claims against them on the grounds that service was defective because the claimants’ solicitors had failed to comply with CPR PD 6A, para 4.2 because they had not asked the defendants’ solicitors whether there were any limitations to the agreement to accept service by e-mail (such as format or number of attachments) and/or the claimants’ solicitors had provided more than one e-mail address for service contrary to PD 6A, para 4.1.
On the defendants’ application—
Held, application refused. The claim form and particulars of claim were validly served on the defendants. As a matter of proper construction of CPR PD 6A, para 4.2, a failure to inquire about limitations to the recipient’s agreement to accept service by e-mail was not fundamental and therefore not fatal. Where there had been no such prior inquiry, the court’s task was to ascertain if the three purposes of service had been achieved, namely to ensure that the contents of the claim form or other originating document were brought to the attention of the person to be served, to notify the recipient that the claim had not merely been formulated but actually commenced as against the relevant defendant, and upon a particular day, and to establish the date from which the timing for other actions would flow. In the instant case, there was no doubt that those three purposes were met. Moreover, the defendants raised the issue after e-mail service had been agreed, service had been made to the e-mail addresses provided, receipt of the e-mail and attachments had been acknowledged, and the defendants’ solicitors had admitted that service had been accepted. In such circumstances, injustice would be caused if service was invalidated, and the purposes frustrated. Furthermore, where a solicitor was on the record and signalled acceptance of service by electronic means without providing any limitation, it was reasonable to infer that there were no limitations that were out of the ordinary. At least in commercial cases, where a party offered to accept service by e-mail and provided more than one e-mail address for the purpose, in purported compliance with para 4.1(1)(b) of CPR PD 6A, it did not follow that service to those multiple addresses was ineffective. The claimants’ solicitors had taken all necessary formal steps to serve by e-mail, the defendants’ solicitors had expressly accepted service, and it was too late to reject. The service of links was distinct from service of the claim form and particulars of claim (paras 95–98, 100–104, 105, 160).
Michael Edenborough KC, Gwilym Harbottle and John Eldridge (instructed by Brandsmiths) for the claimants.
Jacqueline Reid (instructed by EP Legal Ltd) for the defendants.