Failed to serve the claim form correctly? What options are available?

Failed to serve the claim form correctly?  What options are available?

Can retrospective permission for alternative service be obtained to effectively rectify invalid service?

This issue has just been considered in Dunbar Assets v BCP Premier [2015] EWHC 10 (Ch) where, having failed to serve the claim form in accordance with Part 6 and the finding itself outside the limitation period, the claimant sought and gained retrospective permission for alternative service such that service of a copy of the claim form by email was accepted by a Deputy Master. This considerably watered down the approach set out in Innovatorone that alternative service should be used sparingly.  However, the defendant successfully appealed the Deputy Master’s decision so stopping in its tracks a watering down of the need to comply with the service provisions and preventing the use of alternative service as a means to rectify invalid service?

During his judgment, Mr John Baldwin QC sitting as a Deputy Judge in the Chancery Division, reiterated the need to ensure that a claim form is served in compliance with the service rules set out in CPR Part 6. The ability to obtain an order for alternative service for departing from these rules should only be sparingly applied by the courts and certainly not in a case where the claimant's solicitors have simply failed to use the appropriate mechanism for service.

Practical implications

This case serves as a reminder for the following:

  • certain ways of serving a claim form will not be considered to be good service, email being the example seen in this case
  • the actual claim form and not a copy must be served
  • serving a claim form on the day expected by the defendant, due to provisions in a consent order, will not of itself validate service of a claim form which has not been served in compliance with the Part 6 provisions
  • Brown v Innovatorone plc [2009] EWHC 1376, para 40 onwards

if seeking alternative service the guidelines in Innovatorone should be considered and if it is not possible to show a good reason for departing from the CPR Part 6 rules and there is no compelling evidence then an order for alternative service should not be made

Facts

The key issue in this case was that a draft consent order provided for the claim form to be served on the last day for service within the limitation period. There was purported service with a copy of the claim form being emailed with another copy being put into the DX for delivery overnight.

The defendant's solicitor did not accept this as valid service. Service by email is not a method allowed under the rules and putting a document in the DX comes under deemed service rules such that service does not occur on the day it is put in the DX but the second business day after that date. The claimant's solicitors made applications for an extension of time (CPR 7.6(3) and/or relief from sanctions (CPR 3.9), they also sought to rely on CPR 3.10, CPR 6.15 and CPR 6.16. The applications came before a Deputy Master who allowed the application on the basis of CPR 6.15 ie alternative service by email. However, in reaching his decision the Deputy Master:

  • considered that 'it was plain that the Claimant's solicitors were well aware, and if they were not they ought to have been well aware, that it was the actual Claim Form which should have been served
  • found as a fact that 'there was ample time on the 3rd April after the contract embodied in the consent order had been entered into for the Claimant to effect proper service in accordance with CPR 7.5', and
  • found as a fact that 'there was no explanation as to why the Claimant's solicitors did not serve the actual claim form properly by 4pm on the 3rd April'

Requirements for the court to serve by an alternative method

Mr John Baldwin QC sitting as a Deputy Judge held that the Deputy Master had been wrong to conclude that he should make an order under CPR 6.15 that allowed retrospective alternative service of the claim form by email. He also considered that he would not exercise his discretion in favour of the claimant in this case. In taking this approach he referred to the guidelines set out in Innovatorone which, though a first instance decision, were considered by the Court of Appeal in Power and no adverse comment was made as to the guidelines (Brown v Innovatorone plc [2009] EWHC 1376, para 40 onwards, Power v Meloy Whittle Robinson [2014] EWCA Civ 898)

Specific comments which arose in this case were:

First, simply because the defendant's solicitors were expecting service did not mean that this would validate invalid service. In this case the defendant was expecting proper service on 3 April 2014, as provided for in a consent order. Instead it received a copy of the claim form by email and a further copy was put in the DX. A copy of the claim form is insufficient, email was an invalid method of service and putting in the DX did not effect service on the day it was put in the DX

Secondly, the Supreme Court in Abela pointed out that the important purpose of the service of the claim form is to ensure that its contents are communicated to the defendant. In the case before the court the contents had been communicated earlier through a copy being provided prior to starting the pre-action protocol communications. On that basis was valid service so important in this case.  Mr John Baldwin QC considered that it was as communicating the contents is not the only purpose behind serving the claim form. As set out by the Court of Appeal in Hoddinott there are three purposes to service of the claim form:

i) to notify the Defendant that the Claimant had embarked on the formal process of litigation and to inform him of the nature of the claim,

(ii) to enable the Defendant to participate in the process and have some say in the way in which the claim is prosecuted, and

(iii) to enable the court to control the litigation process.

Mr John Baldwin QC added to this list of three his own view that the purpose was to give certainty to the parties that the CPR had been complied with or for example whether any limitation defences may apply.

(Abela v Baadarani [2013] UKSC 44, Hoddinott v Persimmon Homes [2007] EWCA Civ 1203, at [54])

Court details

Court: Chancery Division, High Court

Judge: Mr John Baldwin QC sitting as a Deputy Judge of the Chancery Division

Date of judgment: 12 January 2015

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