Exclusion of Service by fax - not worth the paper it's written on?
The claimant’s claim arose out of a road traffic accident on 2 May 2011. Liability was not in dispute. Proceedings were issued on 5 August 2013.
The claimant’s claim arose out of a road traffic accident on 2 May 2011. Liability was not in dispute. Proceedings were issued on 5 August 2013. The defendant made a Part 36 offer on 25 April 2014. The claimant did not provide a formal response to that offer.
Thereafter, pursuant to the court directions, the defendant put CPR Part 35 questions to the claimant’s orthopaedic expert on 19 June 2014. The expert provided his responses by email to both parties on Sunday 29 June 2014. The responses were favourable to the defendant’s pleaded case.
On Monday 30 June 2014 at 14:09 the defendant sent by fax (and a hard copy by post) a varied Part 36 offer to the claimant’s solicitor. The revised offer was less advantageous to the claimant as permitted by CPR Part 36.3(6). The fax confirmation sheet recorded the transmission as complete at 14:10. At 18:19 the claimant sent a fax purporting to accept the original defendant’s Part 36 offer. The fax confirmation sheet recorded the transmission from the claimant’s solicitor as complete at 18:20. The claimant also sent an email to the defendant attaching the fax that evening at 19:17. A dispute arose between the parties whether the defendant had successfully revised the terms of the Part 36 offer before the claimant purported to accept it.
The claimant thereafter issued an application seeking a declaration that the claim had been settled as the claimant was entitled to accept the original terms of the Part 36 offer. The claimant’s solicitor submitted that:
- He did not receive the defendant’s fax varying the terms of the original Part 36 offer until after the purported acceptance of the original Part 36 offer.
- In any event the claimant’s solicitor’s letter headed paper specifically excluded service of documents by fax and email. Therefore the defendant’s fax had not been validly served.
- Whether or not the claimant receives a fax which has been successfully transmitted is irrelevant for the purposes of CPR 6.26.
- In relation to service by fax, the defendant relied on 6APD.4, paragraph 4.1 (2) (a) and (c). The fact that the claimant had provided a fax number on the claim form was sufficient for the purposes of subsection (c) to confirm their acceptance to service of documents by fax. Simply because the claimant’s solicitor’s letterhead specifically excludes service by fax does not “trump” the relevant practice direction.
Accordingly the defendant’s variation of the Part 36 offer by fax was deemed served on 30 June. The claimant’s purported acceptance of the original Part 36 offer was deemed served on 1 July 2014 as both the fax and email were transmitted after 16:30 on 30 June. Accordingly, the claimant was not entitled to accept the original Part 36 offer, the claim was not settled, and the claimant’s application was dismissed with costs ordered for the defendant.
It is noteworthy that at the hearing, the claimant did not seek to present the following arguments:-
- Whether the terms of the varied Part 36 offer were clear (see paragraph 32 of the judgement of Lord Justice Moore–Bick in Gibbon v Manchester City Council  EWCA CIV 726).
- That the defendant’s purported variation to the Part 36 offer needed to be in a specific format (see Supergroup PLC v Justenough Software CORP INC (2014) QBD (Comm) relating to withdrawal and variation of Part 36 offers).
- That the defendant’s fax confirmation sheet recording the successful transmission was insufficient evidence of the fax to have been successfully transmitted.
The court concluded that as the claimant’s solicitor had included his fax number (and not his email address) on the claim form, this was determinative on the issue of whether they would accept service by fax. The express exclusion of service by fax on the claimant’s solicitor’s letter-headed paper could not trump 6APD.4, paragraph 4.1 (2) (c).
It could be argued, following this decision, express exclusion of service by fax on a firm’s letterhead is worthless in situations where a fax number had been included on a claim form.
Whilst not considered at the hearing, it appears that any letter, fax or other written communication to the claimant’s firm would be a “document” for the purposes of CPR 31.4. Therefore one might ask the logical question – if a firm is not prepared to accept service of documents by fax, then why place the firm’s fax number on the claim form (for the purposes of sub section (c)) or even on the firm’s writing paper (for the purposes of subsection (a))?
From a practice point of view, if it is a practitioner’s intention not to accept service of documents by fax or other electronic means, then the only certain way to avoid falling foul of 6APD.4 is to avoid putting a fax number or email address on any court documents, and even on the firm’s letter headed paper.