Transmission failure

Most litigation solicitors will be familiar with the feeling of relief of achieving last-minute compliance with an order, particularly a debarring order, requiring a document to be filed by a certain time. You put the document on the fax, send if off to court and get a valid proof of transmission all before 4pm. Job done, right? Feet up? Gin and tonic? Wrong.

CPR part 5.5 stipulates that a practice direction may make provision for a document to be sent to court by fax. CPR PD 5A duly implements the relevant rules. But paragraph 5 of that practice direction contains some nasty surprises for the unwary practitioner. Paragraph 5.3(1) provides that a party may file a document by fax. That, however, is said to be subject to paragraph 5.3(6), which provides that if a fax is delivered after 4pm it will be treated as filed on the next day when the court office is open. The real sting in the tail though is found in paragraph 5.3(3), which provides that 'the document is not filed at court until it is delivered to the court's fax machine, whatever time it is shown to have been transmitted from the party's machine'. In other words, if you happen to fax at a time when your document will be held in a queue '“ in the minutes before the closure of most court offices '“ it is very likely that you will be late, no matter what your fax says about transmission.

In most situations, this will not matter. Where the document is a defence, for example, a request by a claimant to file judgment in default cannot generally be made until the court office opens the following day by which time the document (assuming it has arrived at some point in the intervening period) will be treated as filed. If, however, the document is required by a debarring order, the consequences of a few minutes delay may be very serious indeed and may make the difference between compliance and strike out, with the attendant need to make an application under CPR part 3.9. On such an application a court may well be sympathetic as to the reasons for non-compliance, but this may not be enough (where, for example, there were alternative methods for compliance, or a history of similar defaults) to secure the exercise of discretion in one's client's favour.

For emergency use only

Paragraph 5.3 contains other cautionary words. For example, paragraph 5.3(9) provides that fax should not be used 'except in an unavoidable emergency' to deliver a document which attracts a fee, a document relating to a hearing less than two hours ahead, trial bundles or skeleton arguments. Where it is used for documents which attract a fee, the covering letter should set out an explanation and contain an undertaking that the money has either been dispatched or will be paid the following business day (paragraph 5.3(10)). It is not clear what the consequence of a failure to comply with these requirements would be. On the face of it, such a failure does not invalidate the filing; the permissive provision at paragraph 5.3(1) is said to be subject only to the provisions of paragraph 5.3(6), and not these other provisions in the rule. Contravention of these provisions may, however, result in the court directing a hearing, with potentially adverse consequences in costs.

Other provisions of the rule which practitioners should observe are: paragraph 5.3(2), which provides that where documents are faxed hard copies should not be provided in addition; paragraph 5.3(7), providing that the date and time of any hearing to which a fax relates should be prominently displayed on the document; and paragraph 5.3(8), providing that fax should not be used to send letters or documents of a routine or non-urgent nature. Again, a failure to comply with these requirements does not appear to invalidate the act of filing, but might result in judicial censure or an adverse costs order at worst.

What is the alternative?

In circumstances where there is genuine urgency, there may be none. The practice directions governing electronic filing (PDs 5B and 5C) are not of universal application and in any event contain similar provisions as regards the time of filing by email as are contained in PD 5A in relation to fax. Delivery by hand may be practicable, and if so is undoubtedly safer, but if it is not then all that can really be done is to ensure that compliance is not left to the last minute. The lesson of PD 5A is that you should not use fax at all if you can avoid it.

Most of us, thankfully, do not deal with cases where the consequences of late filing are as serious as they were for Michael Richard, the Texas man recently executed because computer problems caused his appeal to be filed 30 minutes after the closure of the court office. But the consequences of non-compliance with PD 5A can still be relatively serious for clients, and practitioners should be aware of its requirements.