We now have compulsory electronic bills of costs. What we do not have are up to date rules relating to service.
PD 47 para.5.A4, dealing with transitional provisional provisions, makes it clear that the new electronic bill must itself must be served:
“Where a bill of costs otherwise falls within paragraph 5.1(a) but work was done both before and after the Transition Date, a party may serve and file either a paper bill or an electronic bill in respect of work done before that date and must serve and file an electronic bill in respect of work done after that date.”
Although the balance of the rules could be much clear, it is clearly the case that this will apply to all bills that are electronic (ie it is the electronic bill itself that must be served).
The difficulty that arises is that the Practice Direction 6A, that deals with service generally, is very restrictive when it comes to electronic service.
“4.1 Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means –
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.
4.2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).
4.3 Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy.”
Service of the electronic bill is compulsory but PD 6A para.4.1(1)(a) requires previous written permission from the other side before you can serve electronically. How can you serve electronically if permission has not been given?
PD 47 para.5.A2 provides a link to the format that an electronic bill may be in but PD 6A para.4.2 appears to allow the other side to dictate the format of an electronic document.
PD 6A para.4.3 states that when serving electronically it is not necessary to also serve a hard copy. This is directly contradicted by PD 47 para.5.1A which requires a hard copy in addition to the electronic version.
If service needs to be both electronic and in hard copy form, what date do you use for calculating deemed service (which will be different for an emailed document and the copy sent by post/DX)?
There was talk about updating the rules relating to electronic service generally, but it would have been nice if this had happened before electronic bills were made compulsory.