340 / 482
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
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.
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.
•
3 1 8