CLAIM FORMS: DECLARATION THAT STEPS TAKEN CONSTITUTE GOOD SERVICE: NEW HIGH COURT CASE CONSIDERED

July 23, 2014 · by · in Applications, Civil Procedure, Service of the claim form

There is a brief report on Lawtel of the decision in Tanweer T/A the Auto Service Centre -v- UK Insurance  & National Insurance & Guarantee Corp (Judge Mackie QC) QBD Merc 18/07/2014.  The case is briefly reported and I hope to review the entire transcript soon.

THE FACTS

A letter to the first defendant stating a claim form was enclosed did not, in fact, enclose the claim form. A further letter was sent six days later. The first defendant’s business was transferred to a  different insurer nine days later and, on that day, the Claimant sent  the claim form to the new insurer.  The claimant agreed that the claim form had not been served until after it expired and he was not in a position to dispute that the claim form had not been validly served. The claimant applied for an order under CPR 6.16 and was successful in that application.

CPR 6.16

Power of court to dispense with service of the claim form

“6.16

(1) The court may dispense with service of a claim form in exceptional circumstances.

(2) An application for an order to dispense with service may be made at any time and –

(a) must be supported by evidence; and

(b) may be made without notice.”

Phillips -v- Symes

In Phillips -v Symes [2008] UKHL1 the House of Lords held that, in exceptional cases, 6.16 can be used to dispense with service.

  1. But assume, as both courts below clearly thought, that it is necessary for the court actually to dispense with service of the  claim form  under r.6.9 before the service in fact effected can be declared valid. Is that within the court’s power? The court below concluded not, on the basis that an order under r.6.9 would by its very nature involve the retrospective validation of what ex hypothesi would otherwise fall to be regarded as ineffective service. And this essentially is the argument by which the respondents now seek to uphold the Court of Appeal’s judgment.
  2. There are, however, as it seems to me, two complete answers to this argument. The first is this. In making the order pursuant to rule 6.9, Peter Smith J was not thereby declaring valid and effective service which had previously been ineffective; rather he was holding the previous service to have been valid and declaring that it was unnecessary to have served the English language  claim form  to make it so. It was in this sense that he was dispensing with service. There was no more question here, therefore, than in the The Goldean Mariner of “retrospective validation”. The second answer is that even if a dispensing order under r.6.9 was properly to be regarded as retrospectively validating what would otherwise have been ineffective service, in my judgment it would have been within the court’s power to make such an order. True, its effect would then be to alter the jurisdictional precedence under an international Convention. But if, as is uncontested, your Lordships could now overrule Dresser (just as the Court of Appeal in Dresser itself departed from the ruling at first instance that English courts are seised of proceedings at the date of issue), the question of seisin being purely one for the national court, so too can an English court, applying its own procedural rules to dispense with service of a particular document, make an order which is effective retrospectively to validate what would otherwise have been an invalid  form  of service. I do not believe that this conclusion involves any exception to the Dresser rule: the rule surely is that the English court is seised of proceedings at the date of effective service, whatever that date may eventually be declared to have been. If, however, it does constitute an exception, so be it: to this limited extent I would if necessary qualify the decision in The Sargasso.
  3. So much for the court’s power to dispense with service under r.6.9. Should the court in its discretion exercise such power? That the court would do so in a purely domestic context is surely clear beyond argument, and this notwithstanding that the exercise of the power would operate to defeat a prospective Limitation Act defence. Is it, however, appropriate to make an order which has the effect of altering the priority of the seisin of proceedings under an international Convention?
  4. On any view the power is one to be exercised sparingly and only in the most exceptional circumstances. It is difficult to suppose, for example, that it could ever properly be exercised if there had been no process of service whatever.”

SO IN EXCEPTIONAL CASES THE COURT CAN DISPENSE WITH SERVICE

In the Tanweer case the judge held that this was an unusual situation where there had been difficulty with the transfer of liabilities. The respondents had not been misled and the court had no difficulty in declaring that the claim form had been validly served.

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