Hastie & Jenkerson v McMahon

JurisdictionEngland & Wales
Judgment Date29 March 1990
Judgment citation (vLex)[1990] EWCA Civ J0329-8
Docket Number90/0322
CourtCourt of Appeal (Civil Division)
Date29 March 1990

[1990] EWCA Civ J0329-8






Royal Courts of Justice.


Lord Justice Lloyd

Lord Justice Glidewell

Lord Justice Woolf


1984. H. No. 5058

Hastie & Jenkerson
(Plaintiffs) Respondents
Patrick John McMahon
(Defendant) Appellant

MR. N. GILMOUR (instructed by Messrs. Hill Dickinson Davis Campbell) appeared on behalf of the (Plaintiffs) Respondents.

MR. C. DOUTHWAITE (instructed by Messrs. Manches & Co.) appeared on behalf of the (Defendant) Appellant.


This is an appeal from a decision of Mr. Justice Popplewell who on 31st July 1989 (when allowing an appeal from a decision of Master Grant in Chambers of 15th March 1989) set aside a judgment which had been entered on 20th December 1989 in favour of the defendant on his counterclaim, with damages to be assessed.


The judgment had been entered by the defendant on the grounds that the plaintiff had failed to comply with a consent order made by Master Hodgson on 28th November 1988. The order required that:

"The Plaintiffs serve on the Defendant by 4.30 p.m. on 19th December 1988 a list of documents pursuant to the Order of Mr Registrar Greenslade dated 12th February 1988 or that they be debarred from defending this action."


Mr. Justice Popplewell allowed the plaintiffs' appeal because he concluded that the plaintiffs had complied with the order of Master Hodgson by causing a clearly legible list of documents to be transmitted by fax to the defendant's solicitors by 4.10 p.m. on 19th December 1988. Mr. Justice Popplewell indicated however that if he was wrong in rejecting the defendant's contention that a list of documents could not be served by fax, he would have dismissed the appeal because as a matter of discretion he would not have considered it right to set aside the judgment because the delay on the part of the plaintiffs' solicitors in serving the list of documents had prejudiced the defendant.


The decision of Mr. Justice Popplewell was the first authoritative decision as to the propriety of serving documents by fax in High Court proceedings and he therefore gave leave to appeal. In order to protect their position in the event that Mr. Justice Popplewell was wrong on the point of principle as to the propriety of serving a list of documents by fax, the plaintiffs have cross-appealed contending that the judge's decision on the question of discretion was wrong. As the cross-appeal only arises in the event of the defendant's appeal succeeding, argument on the cross-appeal has been deferred pending the outcome of the appeal.


This judgment only deals with the question of principle and the facts can be shortly stated as follows. The plaintiffs are veterinary surgeons. They contend that they provided professional services for the defendant between 23rd May 1977 and 8th March 1983 in respect of which the sum of over £4,000 by way of fees plus interest is due. On 30th April 1984 they issued proceedings in the Oxford County Court for those fees. In October 1984 a defence and counterclaim was filed in respect of those claims and after the defence and counterclaim had been amended on 21st July 198 7 the proceedings were transferred to the High Court. On 17th February 1988 the defendant re-amended his defence and counterclaim. The re-amended defence and counterclaim alleges that the plaintiffs' claim is statute barred and that a substantial sum by way of damages is due to the defendant because one of the plaintiffs was negligent in providing professional services in connection with three horses which the defendant purchased for show jumping purposes. In relation to one of those horses alone, the defendant's claim for damages is well in excess of £100,000.


The order for the delivery of the list of documents was made originally by Mr. Registrar Greenslade on 12th February 1988, and it was because of the non-compliance with that order that the consent order was made by Master Hodgson on 28th November 1988. The plaintiffs' solicitors in their second affidavit express regret for their failure to deal with the preparation of the list of documents as expeditiously as they should have done. The partner having the conduct of the proceedings on the plaintiffs' behalf says that the list of documents was prepared over the weekend of the 17th and 18th December. On 19th December he arranged for the list of documents to be typed, and when this had been done, shortly before 3.00 p.m., he immediately arranged for it to be sent by fax from his office at Liverpool to the defendant's solicitors' office at Oxford together with a covering letter. This produced a response from the defendant's solicitors by letter transmitted by fax to the plaintiffs' solicitors complaining that only part of the list of documents had been received and pointing out that transmitting the list by fax "is not good service under the rules". The letter states that "in the circumstances we are not prepared to accept service by fax. If your list is not served in compliance with the rules we shall sign judgment in default…" When this fax was received, the plaintiff's solicitors immediately sent the further list of documents by fax, which arrived at 4.10 p.m., together with a letter which indicates that the original of the list would be transmitted that evening by the now well-established procedure of document exchange.


On the appeal, it was accepted on behalf of the defendant that the second copy of the list was received by fax before the time under the order expired and that it was perfectly legible and in the proper form, as is confirmed by the copy which is in the bundles of documents prepared for the court. It is also accepted that on the following day a further copy of the list was received by document exchange.


In their first affidavit the plaintiffs' solicitors suggest that service by fax is now generally accepted by most major firms of solicitors provided that the original documents are subsequently served by hand or post and contend that the defendant's solicitors were being obstructive in rejecting transmission of the list in this way. However, although this judgment is confined to the question of principle, I should make it clear that any criticism of the defendant's solicitors was rejected both by Master Grant and the judge.


I now turn to the issues which the point of principle raises. These fall conveniently under the following heads:

  • (A) Can a document which is transmitted by fax be regarded as having been served?

  • (B) If the document can be served by fax, does this form of service conflict with the Rules of the Supreme Court?

  • (C) Does this form of service comply with Order 65, rule 5, of the Rules of the Supreme Court?

  • (D) Is the quality of the document reproduced by fax acceptable?


Issue A


There is no expert evidence before the court as to the process which results in a document being transmitted by fax, the parties being content to argue the issue on the basis that the process is now so common that its essential features are common knowledge. There are, however, included among the bundles of papers for the court an example of an "Activity Report", which indicates the information which is available to the person who sends a fax, and copies of documents which have been sent by fax which illustrate the clarity of the result but not the quality of the paper on which the faxed document is reproduced. On the basis of this information, there can be no doubt that subject to the quality of the paper used and the type being of acceptable durability, the results produced by use of fax can be perfectly satisfactory. This no doubt explains why the practice has grown up of using fax by consent for service. It is obvious that it is of considerable convenience to solicitors, particularly if they conduct their practice from different towns, if they can serve documents by fax. If a solicitor did not want to receive documents in this way, he would not install fax and advertise his fax number. Special considerations apply to writs and other documents used for initiating legal proceedings and nothing in this judgment is intended to apply to such documents. However, that class of document apart, are there any legal reasons why advantage should not be taken of the progress in technology which fax represents to enable documents to be served by fax, assuming that this is not contrary to any of the Rules of the Supreme Court?


The purpose of serving a document is to ensure that its contents are available to the recipient and whether the document is served in the conventional way or by fax the result is exactly the same. Mr. Douthwaite on behalf of the defendant submits that what is transmitted by fax is not the document but an electronic message. However, this submission fails to distinguish between the method of transmission and the result of the transmission by fax. What is produced by the transmission of the message by fax admittedly using the recipient's machine and paper is the document which the other party intended should be served. Mr. Douthwaite submits that the service of a document in connection with legal proceedings requires a formal step and the mere production of the document by the recipient's own machine lacks the necessary degree of formality for service of a document in legal proceedings. There can be situations where a certain degree of ceremony is required for service as Lord Justice Mackinnon points out in Sharpley v. Manby [1942] 1 K.B. 220, as for example under the Sheriff's Court (Scotland) Act 1907 which provides that notices "may be given,...

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