No relief for failure to effect service within four months (Piepenbrock v Associated Newspapers Ltd (DMG Media))

No relief for failure to effect service within four months (Piepenbrock v Associated Newspapers Ltd (DMG Media))

The claimant, a litigant in person, failed to effect service of the claim form in accordance with CPR 6 within the four-month validity window. As such, the court was asked to consider numerous applications to validate service and/or the steps that had been taken to effect service during the period of validity. Service had been effected by email and on solicitors who had not been asked to confirm whether or not they were authorised to accept service. Each of the claimant’s applications to validate the steps that he had taken to effect service within the period of validity of the claim form were refused; with the result that the court was without jurisdiction to hear the claim. Written by Christopher Snell, barrister, at New Square Chambers.

Piepenbrock v Associated Newspapers Ltd (DMG Media) of Daily Mail General Trust plc and others [2020] EWHC 1708 (QB)

What are the practical implications of this case?

This is a further example of a litigant ‘courting disaster’ by leaving the service of a claim form until the last possible moment and then failing to validly effect service in accordance with the CPR rules. It is clear that the court has little sympathy for litigants who choose to act in this way, whether they act in person or through solicitors. Unless a litigant has an exceptionally good reason for missing the service deadline and/or serving otherwise that in accordance with CPR 6 it is unlikely that the court will come to their aid.

There are two recent authorities from the highest courts on this topic:

Barton v Wright Hassall LLP [2018] UKSC 12, a decision of the Supreme Court, and

Woodward v Phoenix Healthcare Distributions Ltd [2019] EWCA Civ 985, a decision of the Court of Appeal

In many ways, this decision is factually similar to the facts in Barton. Both cases involve a litigant attempting to serve a claim form by email, without previously having sought confirmation that service of a claim form by email would be acceptable.

Further, in this case the litigant effected service on solicitors without having checked whether they were instructed to accept service on behalf of the defendants; again, the facts were similar in Woodward.

In all three cases the court refused to extend time, retrospectively, for service of the claim form. It is clear that in order for the court to consider extending time retrospectively, a litigant will have had to have taken all reasonable steps to serve the claim form in the four-month validity window. Simply leaving service until the last moment will be insufficient to satisfy the test.

Similarly, if there is no good reason for the service rules not having been adhered to; the court will be unwilling to validate the method of service used; nor will it validate service at an alternative place (ie a solicitor’s office).

The takeaway point is a clear and stark one: a failure to effect service in accordance with the rules is likely, in all but exceptional cases, to result in disaster.

 What was the background?

On 11 October 2019 the claimant issued a claim form against the defendants seeking damages for alleged acts of defamation and malicious falsehood. The claimant elected to serve the claim form himself; and also indicated that particulars of claim were ‘to follow’.

The claimant did not serve the claim form immediately, but instead entered into dialogue with solicitors retained by the defendants.

On 10 February 2020 the claimant’s wife emailed various employees of the defendants’, copying in the relevant solicitors, purporting to serve the claim form and particulars of claim.

On 13 February 2020 the first defendant’s solicitors wrote to the claimant contending that the claim form had not been validly served. The second and third defendants’ solicitors indicated that the claimant had not sought confirmation from them as to whether they were instructed to accept service; and thus service on them was invalid.

The claimant immediately re-sent the claim form and particulars of claim by post to the defendants, but by that stage the claim form had expired and was no longer valid.

On 24 February 2020 the defendants’ solicitors filed an acknowledgment of service indicating that they intended to contest jurisdiction on the basis that the claim form had been invalidly served during the period of validity. There followed applications for an order under CPR 11 to the end that the court had no jurisdiction to hear the claim as service had been ineffective.

On 22 March 2020 the claimant issued an application seeking (among other things):

 •            relief from sanction under CPR 3.9

•            correction of a procedural error pursuant to CPR 3.10

•            an order extending time for service of the claim form pursuant to CPR 7.6

•            an order for service by alternative means/at an alternative place under CPR 6.15, and

•            an order dispensing with service of the claim form pursuant to CPR 6.16

 What did the court decide?

The court began by deciding whether the claim form had been validly served within its lifetime. Perhaps unsurprisingly given the facts, the court concluded that the claim form had not been validly served because:

 •            service on the defendants’ solicitors was not permitted as none of the defendants had provided the solicitor’s address as an address at which the claim form could be served; and the solicitors had not stated that they were instructed to accept service of the claim form. In addition, the solicitors had never indicated that they were willing to accept service by email

•            service on the defendants themselves was ineffective because they had not indicated a willingness to accept service by email

The court then went on to consider whether or not the claimant was entitled to an extension of time for service of the claim form. This was an application for an extension of time after the time for serving the claim form had expired, such that CPR 7.6(3) required the court to consider whether the claimant had taken all reasonable steps to comply with the service rule (CPR 7.5) but had been unable to do so. The authorities establish that the court, when applying CPR 7.6(3), is to consider only those steps taken to effect service during the lifetime of the claim form. In this instance, critically, the claimant did not take any earlier attempts to serve the claim form before he sent it by email on 10 February 2020. It could not be said that the claimant had taken all reasonable steps that he could to serve the claim form within the four-month period. As such, the extension of time application was refused.

The application for a retrospective extension of time for service having failed, the court next considered the application to retrospectively validate the steps taken by the claimant to effect service. This application required the claimant to establish that he had a good reason to justice the making of such an order. The court was specifically required to consider three things: (i) whether the claimant had taken reasonable steps to effective service in accordance with the rules; (ii) whether the defendants or their solicitors were aware of the content of the claim form as at the dare of expiry; and (iii) whether any prejudice would flow from retrospective validation. The court refused the application for retrospective validation, not least because:

 •            the claimant’s error was that he deemed service by email to be an acceptable form of service. Neither the defendants nor their solicitors played any part in that error. It arose as a result of the claimant’s failure to properly consider CPR 6

•            there were no obstacles preventing CPR compliant service in this case. The claim form could have been posted to the correct addresses

•            the defendants, nor their solicitors, were not under any duty to alert the claimant to his error in service: see Woodward v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985

•            there was no good reason to validate the steps taken to serve. Similarly, there would have been no good reason to allow service by email had the claimant have applied in time to serve by email as an alternative method of service

•            the fact that the defendants did receive notification of the content of the claim form in and of itself cannot be enough to retrospectively validate the steps taken

Given its judgment in respect of the three applications listed above, the court dealt swiftly with the application for an order dispensing with service of the claim form. That is a jurisdiction limited to ‘truly exceptional cases’. Given the facts disclosed no good reason to make an order for service by a different method and/or a different place, they could not disclose exceptional circumstances justifying dispensing with service all together.

In relation to the claimant’s application for relief from sanction under CPR 3.9 and the application to correct a procedural error under CPR 3.10, the court held that:

 •            relief from sanction did not assist in the circumstances in which the claimant found himself (applying Lord Sumption in Barton at para [8] and Asplin LJ in Woodward at para [48]) as there was no ‘residual self-standing power available under CPR 3.9 to relieve the claimant of the ‘sanction’ that, as a result of his failure to validly to serve the claim form during its period of validity, it has now lapsed’

•            CPR 3.10 could also not assist the claimant, applying the same reasoning of Sumption LJ in Barton regarding CPR 3.9, as being of equal application to CPR 3.10. If CPR 3.10 could be used retrospectively to validate service not in accordance with the CPR on the basis that there had been a ‘failure to comply with a rule’, this would make CPR 6.15(2) redundant, which would be a surprising result. In distinguishing previous authorities which had permitted the use of CPR 3.10 in connection with issues regarding service, the court stated that in this case, the expiry of the limitation period meant that there was significant prejudice to the defendants if CPR 3.10 was used to validate the ‘error of procedure’ and also that the claimant's method of service was directly contrary to (or at least not permitted by) the CPR

  Case details

 •            Court: Queen’s Bench Division

•            Judge: Mr Justice Nicklin

•            Date of judgment: 01 July 2020

Christopher Snell is a barrister at New Square Chambers, and a member of LexisPSL’s Case Analysis Expert Panels. If you have any questions about membership of these panels, please contact caseanalysis@lexisnexis.co.uk.

This News Analysis was first published by Lexis®PSL Dispute Resolution on 6 July 2020.

 

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