The Gazette 1989

GAZETTE.

SEPTEMBER 1989

Service of documents by FAX

When William Conyngham, Baron Plunkett, was Lord High Chancellor of Ireland and Stephen Woulfe was Lord Chief Baron of Ireland (c.late 1830s) the galloping horse was the fastest means of serving docu- ments on land. Little had changed from the days of Brian Boru or, for that matter, since the days of the early Celts. Now in a little more than a few generations copy docu- ments can be trasmitted in a few seconds over a telephone line to any part of the civilised world. The issue considered in this note is whe t her service by facsimile transmission (fax) of documents is good service in any circumstances. Certain documents can only be served in a prescribed manner according to the Rules of the Superior Courts (1986): Order 9 (rule 2) provides that service of any summons on a defendant shall (subject as set out in Order 9) be effected by personal service if it be reasonably practicable. No service of a summons shall be required when the defendant, by his solicitor, accepts service, and undertakes in writing to enter an appearance (Order 9, rule 1). However, rule 2 of Order 121 of the Rules of the Superior Courts provides: "The delivery or service of any document under these Rules, for which personal service is not required, shall be effected by leaving the document or a copy therof (as may be appropriate) at, or sending the document or a copy therof (as may be appropriate) by registered pre- paid post to, the residence or place of business in the State of the person to be served or the place of business in the State of the solicitor (if any) acting for him in the proceedings to which the document relates". In rule 1 of Order 121 the term "document" is defined as including a pleading, notice, affidavit or order. Does the expression "leaving the document or a copy therof" include the transmission of such document

Mr. John Rogers QC sitting as an additional judge of the Queens Bench Division dismissed the appeal on the ground of delay by the defendants. He stated that he had not been asked to determine whether proper service had been effected by the fax which arrived at 3.20 pm but it seemed to him that it was not appropriate service. The defendants appealed. The Court of Appeal (O'Connor and Mustill L.JJ.) considered that the appeal should be allowed because the judge at first instance failed to consider either delay by the plaintiffs (in issuing and serving the writ), or prejudice of the plaintiffs (none could have been caused by an extension of twenty minutes beyond 4 pm). The question whether sending a document by fax was good service was not directly in issue. The rules did not specifically deal with the matter. However, the Court of Appeal (O'Connor L.J. with whom Mustill L.J. agreed) was attracted by the argument that having regard to Order 65 (the appropriate parts of which are identical to Order 121 of the Rules of the Superior Courts in this jurisdiction) if a document in fact came into the hands of the party to be served, that was good service as far as ordinary service was concerned. If the serving party could prove that a legible copy of the document had come into the hands of the other party and the rules were otherwise complied with that was good service. There is merit in construing rule 2 of Order 121 of the Rules of the Superior Courts to the effect that the expression " l e a v i ng t he document or a copy therof . . at the residence or place of business in the State of the person to be served or the place of business in the State of the solicitor (if any) acting for him in the proceedings to wh i ch the document relates" includes service by fax trans- mission. A practice direction from the High Court would clarify the issue. •

by fax. This precise issue arose in the U.K. in the case of Ralux NV/SA -v- Spencer Mason which was decided by the Court of Appeal on May 15, 1989, (The Times May 18, 1989). The action concerned a sale of carpets by the plaintiffs, a Belgian company, to the defendants in 1985. After the issue and service

By Eamonn G. Hall, Solicitor.

of the writ in 1987, the plaintiffs obtained a default judgment. The defendants succeeded in setting aside the judgment on terms that the defendants pay £6,000 into court and serve a defence and counterclaim by 4 pm on April 18, 1988. The payment into court was made by the defendants on April 6 and on t he same date the defendants applied for an extension of time in which to serve the defence and counterclaim. The Dis- trict Registrar refused an applica- tion by the defendants for an extension of time in which to serve a defence and counterclaim on the plaintiffs. The defendants' solicitors had until 4 pm on April 18 to serve the pleadings. A defence and counter- claim were hastily prepared and sent by fax. The documents arrived at the offices of the plaintiffs' solicitors at about 3.20 that afternoon. However, the plaintiffs' solicitors telephoned the defend- ants' solicitors to state that they were not prepared to accept service by fax. Thereupon the defendants' solicitors sent another fax to agents in the plaintiffs' solicitors' t own who served the documents personally at 4.20 pm. The defendants appealed the Dis- trict Registrar's decision and sought either an extension of 14 days beyond April 18, or an extension from 4 pm to 5 pm on April 18.

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