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Editorial: Filing by Email or Fax - Aidan Ellis, Temple Garden Chambers

24/08/17. Upon emailing draft directions to a County Court recently (as requested by the Judge), I received a standard acknowledgement email which reminded me (in bold red and blue lettering) of the rules applicable to filing documents by email. Since the issues involved are rarely litigated and litigants might assume that use of email and fax are, by now, wholly acceptable, it may be worth a brief reminder of those rules.

In relation to filing by fax, there are detailed provisions in Practice Direction A to Part 5 of the Civil Procedure Rules at paragraph 5.3. I note that where a party files by fax “he must not send a hard copy in addition”. That rule is sometimes overlooked; on applications for relief when a fax has gone missing, it is not uncommon for the respondent to try to make the point that a hard copy could also have been sent. If the fax arrives after 4pm, it is treated as arriving on the next day. Fax should not be used for routine letters, documents which attract a fee (save in unavoidable emergency) or for trial bundles / skeleton arguments.

Filing by email gets its own practice direction. Some of the contents are similar to the practice direction in relation to faxes (parties must not also send hard copies; emails received after 4pm are treated as having been filed on the next day). I note also that the email and attachments must not exceed 25 pages of A4 and there are special rules in relation to statements of truth on documents sent by email.

For many years the dream of efficiency has been to move towards a more electronic system. Some International Courts and Tribunals adopt a largely paper-free system, where the expectation is that all applications are submitted as attachments to emails. The Practice Directions to Part 5 make it clear that the default position under the civil procedure rules remains posted correspondence. Where a party wishes to use email or fax, there are clear pitfalls to avoid and the safest course is to check the relevant Practice Direction before assuming that an email or fax will suffice.

Aidan Ellis
Temple Garden Chambers

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