Getting the basics right- “All of these errors could have been avoided with a little diligence”

In two of the cases set out below, the default costs certificate was set aside due to invalid or incomplete service. In the third case, the setting aside of the default costs certificate was reversed as the recipient did in fact receive the documents even though they were sent to an incorrect e-mail address.

In McMinn v Peter Higson [2021] Lexis Citation 102 a default costs certificate was set aside because the receiving party failed to serve the electronic version of the bill. Master Nagalingam, sitting in the SCCO, found that notice of commencement can only be effective by providing all the documents in one exercise.

In Gregor Fisken Ltd v Carl [2021] EWHC B9 (Costs) (14 June 2021) Costs Judge Leonard, sitting in the SCCO, found that the Claimant was not entitled to the Default Costs Certificate and therefore it was set aside. The notice of commencement had been served on the Defendant direct, rather than on the solicitor on record. Furthermore, the Defendant had not indicated that he would accept service by e-mail. Thirdly the notice was posted to an address which was not a valid address for service. The Court found that “All of these errors could have been avoided with a little diligence.”. The Court declined to retrospectively validate service upon the wrong person and by the wrong means.

Finally, in Serbian Orthodox Church - Serbian Patriarchy v Kesar & Co [2021] EWHC 1205 (QB) Foxton J allowed an appeal from an order of the Senior Costs Judge setting aside a Default Costs Certificate for the sum of £222,256.85. Senior Master Gordon-Saker had set aside the certificate on the basis that, although the parties in that case had agreed to accept service by email, the notice of commencement had been sent to an out-of-date email address and so had not been validly served on the paying party, a solicitor. This was despite the fact that the solicitor had arranged for all emails sent to the old email address to be forwarded automatically and instantaneously to the current one, and he simply did not open the email serving the notice of commencement.

Foxton J agreed with the Senior Costs Judge's conclusion that service had not been effected in compliance with CPR 6.20(1)(d) and practice Direction 6A. He was however persuaded (on a submission that had not been put to the Senior Costs Judge) that it was appropriate retrospectively to validate service of the notice of commencement under CPR 6.27.

In concluding that that service by email to the wrong email address could not be effective service, Foxton J undertook a thorough analysis of the provisions of the CPR for service by various methods. Foxton J found that CPR 3.10, as a provision of general application, must yield to the more specific provisions of the CPR as to service. Accordingly the receiving party could only validate the service of the notice of commencement if it could persuade the court to make an order under CPR 6.27.

The notice of commencement and supporting documents had been sent to an email address which the solicitor had used, and which was set up not to notify senders that the email was no longer in use or to direct them to a different email address, but automatically to forward the documents to the right address. They were received through the agreed mechanism for service. Short of opening the email (which he did not do) it would not in fact have been possible for the solicitor to know whether the notice of commencement had reached the correct email box because it had been sent there directly or forwarded automatically.

The requisite documents not only reached the party to be served, but did so by service to an email address which was set up to receive electronic service of documents such as the notice of commencement, and which ought to have been monitored to that end. By reason of its arrival at that email address, the document reached the solicitor by a means from which, had the email been opened, it would have been obvious this was an attempt at formal service. The appeal was therefore allowed, albeit on an issue that had not been advance before the Senior Master.