Serving via email CPR 6.4 etc.

[TTman]

In a recent court session with the rogue trader/debtor, he continued to
evade the question'where do you live' etc. The judge confirmed that it
would be ok to serve the N39/N316 by email, the debtor having confirmed
the email address as valid ( it also appears on his website).
The update here is that the debtor has phoned the court to say he will
pay the outstanding balance on the 31st January ( thus avoiding the
EX140 which is mightily suspicious to say the least). My friend has just
received confirmation that her account has been credited with the TPDO
funds.
My friend has agreed to this payment offer of the balance on the 31st
Jan.. ( I don't think it will happen, just my suspicious mind).

So onto the question. We are helping another person that got a default
judgement against the same person ( he failed to file a defence). She
now wants to serve an N39/316 by email but does not have an address for
service. One clear option is to use CPR 6.7A- but it would fail on 6.7(2)
How to proceed? Will she have to go to court and get permission/order
from a judge to serve by email without knowing any 'true' address ?
TIA for any guidance.

[Simon Parker]

Post by TTman
In a recent court session with the rogue trader/debtor, he continued to
evade the question'where do you live' etc. The judge confirmed that it
would be ok to serve the N39/N316 by email, the debtor having confirmed
the email address as valid ( it also appears on his website).
The update here is that the debtor has phoned the court to say he will
pay the outstanding balance on the 31st January ( thus avoiding the
EX140 which is mightily suspicious to say the least). My friend has just
received confirmation that her account has been credited with the TPDO
funds.
My friend has agreed to this payment offer of the balance on the 31st
Jan.. ( I don't think it will happen, just my suspicious mind).

Receiving the payment via the TPDO is excellent news.

Hopefully, the balance is received on or before the 31st January.

Post by TTman
So onto the question. We are helping another person that got a default
judgement against the same person ( he failed to file a defence). She
now wants to serve an N39/316 by email  but does not have an address for
service. One clear option is to use CPR 6.7A- but it would fail on 6.7(2)
How to proceed? Will she have to go to court and get permission/order
from a judge to serve by email without knowing any 'true' address ?
TIA for any guidance.

Getting service right is incredibly important, as demonstrated in Barton
v Wright Hassall LLP [2018] UKSC 12 [^1] which is apposite to your
question as it concerned service of a claim form via e-mail without
having first secured the Judgment Debtor's / defendant's (D) prior
agreement to do so. (Spoiler Alert: The court refused to validate
service and as service was close to the limitation period for bringing
the claim the entire claim was time-barred.)

Part 6 of the CPR [^2] (CPR 6) sets out the hierarchy for service of
documents which could be summarised as follows:

(1) Mandatory personal service which takes precedence over any other
method of service in CPR 6. (See CPR 6.5(1) for details of when
personal service is mandatory. (Note for clarity: Doesn't apply to your
case.))

(2) Solicitor - where a solicitor has been instructed to accept service
and *this has been confirmed in writing to the claimant*, (See Woodward
and another v Phoenix Healthcare Distribution Limited [2019] EWCA Civ
985 [^3]) service must be effected on the solicitor and non-mandatory
personal service is not permitted (CPR 6.7(1)). (Note for clarity: The
defendant has acted as a LIP to date so this doesn't apply in your case
either.)

(3) Service per the Companies Act 2006 which offers an alternative to
the methods of service in the CPR 6 which requires service on a place of
business or branch of the company or limited liability partnership (LLP)
concerned. (Note for clarity: The defendant is neither a limited
company nor LLP so this doesn't apply in your case either.)

If none of the above apply (which in your case they do not) the Judgment
Creditor / Claimant (C) may choose between the different methods
contained in CPR 6.3.

They are, (in no particular order):

o personal service;
o first class post or DX;
o leaving the claim form at a specified location;
o fax or other means on electronic communication subject to
Practice Direction 6A (abbreviated as PD6A [^4]); or
o a contractually agreed method.

Failing the above, C may follow the default service provisions contained
in CPR 6.9. Where D is an individual, (as in this case), where it is
not reasonably possible to ascertain their current residence or place of
business, C must first determine whether there is an alternative place
or method by which service may be effected. If this cannot be
ascertained, the claimant may serve on the defendant's usual or last
known residence.

However, at the best of times the provisions for default service require
great care and skill and when dealing with an evasive D this goes double
so I would recommend avoiding those at all costs.

In your case, I would suggest service be electronic methods is
preferable which means the provisions of PD6A [^4] *MUST* be observed.
Unless C has received prior written notice that D (Ed: or their
solicitor) is willing to accept service by a particular electronic means
(including but not limited to e-mail), then C *MUST* obtain confirmation
that this method is acceptable (para 4.1 of PD6A). The Barton case,
referenced above, ably demonstrates the consequences of failing to do
this - and the court's unwillingness to make an exception for an
inexperienced Litigant In Person - with the Supreme Court even going so
far as to reject the suggestion that D's solicitor should have alerted
the claimant to his error, (a view that informed the Court of Appeal in
Woodward (also referenced above).

Given D's behaviour to date, it would be logical to expect that they
will refuse to engage with C and will not acquiesce to confirming they
will accept service via e-mail.

Which leaves C relying upon the provisions for alternative service.
(Technically, and in the name of completeness, there's the option for no
service but that requires meeting a high threshold of exceptional
circumstances.)

With an application for alternative service, the burden is on C to
persuade the court that there is good reason for making the order. C
needs to show a good reason that satisfies the court to order
alternative service. I would suggest deliberate withholding of a postal
address and an order for alternative service in a parallel case
involving D could be persuasive but it is up to the court to consider
what amounts to good reason having considered all the circumstances of
the case.

One point of note (from Power v Meloy Whittle Robinson Solicitors [2014]
EWCA Civ 898 [^5]) is that C is required to take reasonable steps to
effect service but does not need to show that it has taken all the steps
it could reasonably have taken to effect service, (should this be
questioned). If D is playing technical games, (as here), this is likely
to count against it (as in Abela and others v Baadarani [2013] UKSC 44
[^6]).

Interestingly, the courts are showing their willingness, in appropriate
circumstances, for alternative service through different forms of social
media. For example, in CMOC Sales & Marketing Ltd v Persons Unknown and
30 others [2018] EWHC 2230 (Comm) [^7], a case involving a sophisticated
cyber fraud, service was permitted using Facebook Messenger, WhatsApp
and also through access to a virtual data room. The High Court also
permitted service via WhatsApp in Gray v Hurley [2019] EWHC 1636 (QB) [^8].

I've deliberately explained everything to permit the claimant to make
their own decision on the matter in clear knowledge of the consequences
of getting it wrong.

Without advising C what to do, were I in their position, I would, in the
first instance, e-mail D and simultaneously send them a message on
WhatsApp, (if they have their mobile number and it is on WhatsApp),
requesting that they either provide an address for service or confirm
that they are willing to accept service via an alternative method
(e-mail and / or WhatsApp), being sure to spell out that should D fail
to provide either, including by failing to respond, that I will seek an
order from the court permitting alternative service, the costs of which
will be added to the debt.

If D responds confirming their acceptance of alternative service, then I
would proceed on that basis.

But if they do not respond, I would apply for an order for alternative
service which may be via e-mail, WhatsApp, social media or a combination
thereof. In support of the application, I would adduce a copy of the
order from the parallel case for alternative service and D's refusal to
engage regarding service with the e-mail and WhatsApp sent above
demonstrating this.

But that's just what I would do. C must decide the best course for
themselves, or take paid for legal advice (the cost of which they'd be
unlikely to recover from D).

Regards

S.P.

[^1] https://www.bailii.org/uk/cases/UKSC/2018/12.html
[^2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06
[^3] https://www.bailii.org/ew/cases/EWCA/Civ/2019/985.html
[^4]
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06/pd_part06a
[^5] https://www.bailii.org/ew/cases/EWCA/Civ/2014/898.html
[^6] https://www.bailii.org/uk/cases/UKSC/2013/44.html
[^7] https://www.bailii.org/ew/cases/EWHC/Comm/2018/2230.html
[^8] https://www.bailii.org/ew/cases/EWHC/QB/2019/1636.html

[TTman]

Post by Simon Parker

Post by TTman
In a recent court session with the rogue trader/debtor, he continued
to evade the question'where do you live' etc. The judge confirmed that
it would be ok to serve the N39/N316 by email, the debtor having
confirmed the email address as valid ( it also appears on his website).
The update here is that the debtor has phoned the court to say he will
pay the outstanding balance on the 31st January ( thus avoiding the
EX140 which is mightily suspicious to say the least). My friend has
just received confirmation that her account has been credited with the
TPDO funds.
My friend has agreed to this payment offer of the balance on the 31st
Jan.. ( I don't think it will happen, just my suspicious mind).

Receiving the payment via the TPDO is excellent news.
Hopefully, the balance is received on or before the 31st January.

Post by TTman
So onto the question. We are helping another person that got a default
judgement against the same person ( he failed to file a defence). She
now wants to serve an N39/316 by email  but does not have an address
for service. One clear option is to use CPR 6.7A- but it would fail on
6.7(2)
How to proceed? Will she have to go to court and get permission/order
from a judge to serve by email without knowing any 'true' address ?
TIA for any guidance.

Getting service right is incredibly important, as demonstrated in Barton
v Wright Hassall LLP [2018] UKSC 12 [^1] which is apposite to your
question as it concerned service of a claim form via e-mail without
having first secured the Judgment Debtor's / defendant's (D) prior
agreement to do so.  (Spoiler Alert: The court refused to validate
service and as service was close to the limitation period for bringing
the claim the entire claim was time-barred.)
Part 6 of the CPR [^2] (CPR 6) sets out the hierarchy for service of
(1) Mandatory personal service which takes precedence over any other
method of service in CPR 6.  (See CPR 6.5(1) for details of when
personal service is mandatory. (Note for clarity: Doesn't apply to your
case.))
(2) Solicitor - where a solicitor has been instructed to accept service
and *this has been confirmed in writing to the claimant*, (See Woodward
and another v Phoenix Healthcare Distribution Limited [2019] EWCA Civ
985 [^3]) service must be effected on the solicitor and non-mandatory
personal service is not permitted (CPR 6.7(1)).  (Note for clarity: The
defendant has acted as a LIP to date so this doesn't apply in your case
either.)
(3) Service per the Companies Act 2006 which offers an alternative to
the methods of service in the CPR 6 which requires service on a place of
business or branch of the company or limited liability partnership (LLP)
concerned.  (Note for clarity: The defendant is neither a limited
company nor LLP so this doesn't apply in your case either.)
If none of the above apply (which in your case they do not) the Judgment
Creditor / Claimant (C) may choose between the different methods
contained in CPR 6.3.
   o   personal service;
   o   first class post or DX;
   o   leaving the claim form at a specified location;
   o   fax or other means on electronic communication subject to
Practice Direction 6A (abbreviated as PD6A [^4]); or
   o   a contractually agreed method.
Failing the above, C may follow the default service provisions contained
in CPR 6.9.  Where D is an individual, (as in this case), where it is
not reasonably possible to ascertain their current residence or place of
business, C must first determine whether there is an alternative place
or method by which service may be effected.  If this cannot be
ascertained, the claimant may serve on the defendant's usual or last
known residence.
However, at the best of times the provisions for default service require
great care and skill and when dealing with an evasive D this goes double
so I would recommend avoiding those at all costs.
In your case, I would suggest service be electronic methods is
preferable which means the provisions of PD6A [^4] *MUST* be observed.
Unless C has received prior written notice that D (Ed: or their
solicitor) is willing to accept service by a particular electronic means
(including but not limited to e-mail), then C *MUST* obtain confirmation
that this method is acceptable (para 4.1 of PD6A).  The Barton case,
referenced above, ably demonstrates the consequences of failing to do
this - and the court's unwillingness to make an exception for an
inexperienced Litigant In Person - with the Supreme Court even going so
far as to reject the suggestion that D's solicitor should have alerted
the claimant to his error, (a view that informed the Court of Appeal in
Woodward (also referenced above).
Given D's behaviour to date, it would be logical to expect that they
will refuse to engage with C and will not acquiesce to confirming they
will accept service via e-mail.
Which leaves C relying upon the provisions for alternative service.
(Technically, and in the name of completeness, there's the option for no
service but that requires meeting a high threshold of exceptional
circumstances.)
With an application for alternative service, the burden is on C to
persuade the court that there is good reason for making the order.  C
needs to show a good reason that satisfies the court to order
alternative service.  I would suggest deliberate withholding of a postal
address and an order for alternative service in a parallel case
involving D could be persuasive but it is up to the court to consider
what amounts to good reason having considered all the circumstances of
the case.
One point of note (from Power v Meloy Whittle Robinson Solicitors [2014]
EWCA Civ 898 [^5]) is that C is required to take reasonable steps to
effect service but does not need to show that it has taken all the steps
it could reasonably have taken to effect service, (should this be
questioned).  If D is playing technical games, (as here), this is likely
to count against it (as in Abela and others v Baadarani [2013] UKSC 44
[^6]).
Interestingly, the courts are showing their willingness, in appropriate
circumstances, for alternative service through different forms of social
media.  For example, in CMOC Sales & Marketing Ltd v Persons Unknown and
30 others [2018] EWHC 2230 (Comm) [^7], a case involving a sophisticated
cyber fraud, service was permitted using Facebook Messenger, WhatsApp
and also through access to a virtual data room.  The High Court also
permitted service via WhatsApp in Gray v Hurley [2019] EWHC 1636 (QB) [^8].
I've deliberately explained everything to permit the claimant to make
their own decision on the matter in clear knowledge of the consequences
of getting it wrong.
Without advising C what to do, were I in their position, I would, in the
first instance, e-mail D and simultaneously send them a message on
WhatsApp, (if they have their mobile number and it is on WhatsApp),
requesting that they either provide an address for service or confirm
that they are willing to accept service via an alternative method (e-
mail and / or WhatsApp), being sure to spell out that should D fail to
provide either, including by failing to respond, that I will seek an
order from the court permitting alternative service, the costs of which
will be added to the debt.
If D responds confirming their acceptance of alternative service, then I
would proceed on that basis.
But if they do not respond, I would apply for an order for alternative
service which may be via e-mail, WhatsApp, social media or a combination
thereof.  In support of the application, I would adduce a copy of the
order from the parallel case for alternative service and D's refusal to
engage regarding service with the e-mail and WhatsApp sent above
demonstrating this.
But that's just what I would do.  C must decide the best course for
themselves, or take paid for legal advice (the cost of which they'd be
unlikely to recover from D).
Regards
S.P.
[^1] https://www.bailii.org/uk/cases/UKSC/2018/12.html
[^2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06
[^3] https://www.bailii.org/ew/cases/EWCA/Civ/2019/985.html
[^4] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/
part06/pd_part06a
[^5] https://www.bailii.org/ew/cases/EWCA/Civ/2014/898.html
[^6] https://www.bailii.org/uk/cases/UKSC/2013/44.html
[^7] https://www.bailii.org/ew/cases/EWHC/Comm/2018/2230.html
[^8] https://www.bailii.org/ew/cases/EWHC/QB/2019/1636.html

Many thanks, there's lot to take in and we will proceed with caution.

[TTman]

Update.... Our 'friend ' has filed the TPDO and N316 with the court and
paid the fees. Neither of these require an address for service as the
court deals with the administration of those.
The court has been instructed by the debtor to only communicate via
email so he will get notice in due course without any CPR procedural
issues..
For the TPDO, it will be 7 days after the court sends the papers to
the bank ( having first been reviewed and approved by a judge which we
hope will be a formality/rubber stamped). Not sure how long the 316 will
take, but in the prior case, a date is set for early Feb.So maybe 6
weeks or so.

[Simon Parker]

Post by TTman
Update.... Our 'friend ' has filed the TPDO and N316 with the court and
paid the fees. Neither of these require an address for service as the
court deals with the administration of those.
The court has been instructed by the debtor to only communicate via
email so he will get notice in due course without any CPR procedural
issues..

With the greatest of respect, I draw to your attention section 1 of
Practice Form N349 ("Application for a third party debt order") which,
under the heading "Judgment Debtor", states "The judgment debtor is
<space to insert judgment debtor's name> whose address is <space to
insert judgment debtors address>" and "Postcode".

CPR Part 72 deals with Third Party Debt Orders, rule 72.3(2)(a)(ii) of
which states: "The application notice must contain the information
required by Practice Direction 72". [^1]

Practice Direction 72 paragraph 1.2(1) states: "The application notice
must contain the following information - the name and address of the
judgment debtor".

Section one of Practice Form N316 matches that of Form N349.

Post by TTman
 For the TPDO, it will be 7 days after the court sends the papers to
the bank ( having first been reviewed and approved by a judge which we
hope will be a formality/rubber stamped). Not sure how long the 316 will
take, but in the prior case, a date is set for early Feb.So maybe 6
weeks or so.

I hope you are successful with the TPDO and that the N316 flushes out an
additional payment should the TPDO not yield sufficient to satisfy the debt.

Regards

S.P.

[^1]
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part72#IDADF0IC
[^2]
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part72/pd_part72

[TTman]

Post by Simon Parker

Post by TTman
Update.... Our 'friend ' has filed the TPDO and N316 with the court
and paid the fees. Neither of these require an address for service as
the court deals with the administration of those.
The court has been instructed by the debtor to only communicate via
email so he will get notice in due course without any CPR procedural
issues..

With the greatest of respect, I draw to your attention section 1 of
Practice Form N349 ("Application for a third party debt order") which,
under the heading "Judgment Debtor", states "The judgment debtor is
<space to insert judgment debtor's name> whose address is <space to
insert judgment debtors address>" and "Postcode".
CPR Part 72 deals with Third Party Debt Orders, rule 72.3(2)(a)(ii) of
which states: "The application notice must contain the information
required by Practice Direction 72". [^1]
Practice Direction 72 paragraph 1.2(1) states: "The application notice
must contain the following information - the name and address of the
judgment debtor".
Section one of Practice Form N316 matches that of Form N349.

Post by TTman
  For the TPDO, it will be 7 days after the court sends the papers to
the bank ( having first been reviewed and approved by a judge which we
hope will be a formality/rubber stamped). Not sure how long the 316
will take, but in the prior case, a date is set for early Feb.So maybe
6 weeks or so.

I hope you are successful with the TPDO and that the N316 flushes out an
additional payment should the TPDO not yield sufficient to satisfy the debt.
Regards
S.P.
[^1] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/
part72#IDADF0IC
[^2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/
part72/pd_part72

Many thanks, I'll get that looked into. I guess we have a problem houston :(

[TTman]

Post by Simon Parker

Post by TTman
Update.... Our 'friend ' has filed the TPDO and N316 with the court
and paid the fees. Neither of these require an address for service as
the court deals with the administration of those.
The court has been instructed by the debtor to only communicate via
email so he will get notice in due course without any CPR procedural
issues..

With the greatest of respect, I draw to your attention section 1 of
Practice Form N349 ("Application for a third party debt order") which,
under the heading "Judgment Debtor", states "The judgment debtor is
<space to insert judgment debtor's name> whose address is <space to
insert judgment debtors address>" and "Postcode".
CPR Part 72 deals with Third Party Debt Orders, rule 72.3(2)(a)(ii) of
which states: "The application notice must contain the information
required by Practice Direction 72". [^1]
Practice Direction 72 paragraph 1.2(1) states: "The application notice
must contain the following information - the name and address of the
judgment debtor".
Section one of Practice Form N316 matches that of Form N349.

Post by TTman
  For the TPDO, it will be 7 days after the court sends the papers to
the bank ( having first been reviewed and approved by a judge which we
hope will be a formality/rubber stamped). Not sure how long the 316
will take, but in the prior case, a date is set for early Feb.So maybe
6 weeks or so.

I hope you are successful with the TPDO and that the N316 flushes out an
additional payment should the TPDO not yield sufficient to satisfy the debt.
Regards
S.P.
[^1] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/
part72#IDADF0IC
[^2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/
part72/pd_part72

We could be ok.. I just checked....She has put the address the debtor
used in the original moneyclaim ( even though we know it's now invalid)