SERVICE OF A COPY CLAIM FORM IS NOT GOOD SERVICE: HOW COULD THIS BENEFIT A CLAIMANT?
This post looks at the unusual case of Hills Construction –v- Struth [2013] EWHC 1693 (TCC) which considered issues relating to service of the claim form and extensions of time for service of the Particulars of Claim.
The facts
Hills was an action about a construction dispute. Proceedings were issued and, on the 23rd January 2013 the claimant’s solicitor sent a copy of the claim form to the defendant’s solicitor stating that a “copy of the issued Claim Form” was sent and asking for stay.
On the 20th February 2013 the defendant replies stating that the Particulars of Claim had not been served within 14 days. The claimant replied stating that the Particulars of Claim had not been served, a photocopy had been sent (that letter was never received).
The defendant made an application to strike the action out on the grounds that the Particulars of Claim had not been served. This was granted on a without notice basis. The claimant applied to set aside that order on the grounds that the Claim Form had never, in fact, been served.
The decision on service of the copy Claim Form
Mr Justice Ramsey found that service of a copy of the claim form was not good service of the claim form.
“In my judgment under the CPR what is required, as a general rule, is service of a hard copy document as issued and sealed by the court and a photocopy of that document is not sufficient. When a claim form is issued there is an original sealed claim form retained by the court and original sealed claim forms provided so that one can be retained by the claimant and one or more can be served on the defendants. As stated in Cranfield v Bridgegrove at [87] the only flaw in the process was that “a copy of the issued claim form” rather than “the original document itself” was received. In that case the copy was a faxed copy of the original claim form.
46. It is evident from the judgment of Dyson LJ that a copy of the claim form was not sufficient and that what was required was a document originally issued and sealed by the court. For those reasons, in this case the photocopy of the claim form which was sent by Document Exchange to Birketts on 23 January 2013 was not the document required for service to be achieved under CPR 6.3. In order to effect proper service by that means I consider that a claim form, as issued and sealed by the court and as an original document would have had to have been enclosed with Prettys’ letter.”
Would an extension of time had been granted?
The judge held that the application for an extension of time had to be considered under the relief from sanctions regime and CPR 3.9.
However the judge would not have exercised his discretion after 1st April 2013
In that case the application for relief was made on 22nd March and the new CPR 3.9 did not apply. The judge held that, in the unusual circumstances, he would (if it had been necessary) had granted an extension. However he observed:-
“69. I am quite clear that given the change to the overriding objective and to CPR3.9, if this application had been made after 1 April 2013, it would not have been granted.
The need for compliance with the rules practice directions and orders now forms an essential part of the CPR.”
Practical points for litigators
1. It is unusual for a claimant to be arguing that the claim form has not been served. The essential point for every litigator to take away is that service of a copy of the claim form is not good service.
2. If the claim form had been served, and the application had been heard after 1st April, then the claimant’s action would have been struck out. It is very perilous to serve a Claim Form alone. If at all possible serve the Particulars with the Claim Form.
3. If the Particulars cannot be served within the 14 days, then make a prospective application before the expiry of the 14 day period. The law in relation to prospective applications is relatively generous, see Roberts –v- Momentum Services [2003] 1 WLR 1577 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2003/299.html&query=roberts+and+momentum+and+services&method=boolean
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This remains good law after the 1st April see Atrium Training Services [2013] EWHC 1562 (Ch) |
And the discussion at http://civillitigationbrief.wordpress.com/2013/06/26/extensions-of-time-after-jackson-safety-first/
See the case at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2013/1693.html&query=struth+and+hills&method=boolean