FIRST CLAIM FORM CASE OF THE YEAR: THE DANGERS OF LEAVING SERVICE UNTIL THE LAST MINUTE

It is the middle of January (bluebells nowhere in sight) and we have already have a claim form case to consider.  In  Kennedy v The National Trust for Scotland [2017] EWHC 3368 (QB) Sir David Eady considered whether service (at the eleventh hour) was valid.

“a claimant who consciously chooses to leave such important matters to the very last minute takes a gamble and cannot expect the assistance of the court in going back to square one. I would not see any reason to help him or his solicitors to avoid the disciplines of the CPR over these long delays. He certainly cannot blame circumstances beyond his control – nor can it be said to be the Defendant’s fault that he found himself in this predicament. “

KEY POINTS

  • The proceedings were deemed served on the date they were put in the post.
  • The judge agreed with an earlier decision of Master McCloud on the correct interpretation of CPR 7.5.
  • The claim form in this case was served within the time for service.
  • If the court had needed to exercise its discretion in relation to service, it would not have exercised its discretion to extend time for service, or grant the claimant any other type of relief.

(The decision of Master McCloud which is referred to in this judgment is discussed in an earlier post available here)

THE CASE

The claimant brought an action for defamation against the National Trust in Scotland. The claim form was issued on the 24th February 2017.  The defendant’s solicitors indicated that they were not instructed to accept service.  The claimant served the Defendant, by registered post, at its registered office by 1st class post on the 23rd August. (There is a six month period for service in Scotland. The claimant did not need permission to serve in Scotland).

 

THE JUDGMENT ON SERVICE OF THE CLAIM FORM WITHIN TIME

    1. Each of the parties seeks a declaration as to the validity (or otherwise) of the attempted service of the claim form. The Defendant’s application is dated 29 September and the Claimant’s followed shortly after on 11 October. The arguments turned on the inter-relationship between CPR r 7.5 and CPR r 6.14. This has been considered by other judges on a number of occasions and differing views have been expressed. My attention was drawn specifically to Paxton Jones v Chichester Harbour Conservancy [2017] EWHC 2270 (QB)Brightside v RSM UK Audit [2017] 1 WLR 1943Ageas (UK) Ltd v Kwik-Fit (GB) Ltd [2013] EWHC 3261 (QB)T&L Sugars Ltd v Tate & Lyle Industries [2014] EWHC 1066 (Comm) and Heron Bros Ltd v Central Bedfordshire Council [2015] PTSR 1146. In Paxton Jones, at [31], there was said to be an “unfortunate tension” between the two rules. It may be, therefore, that greater clarity in the drafting would be of assistance to litigants and practitioners.

    2. In so far as relevant, it is currently provided in CPR r 7.5 as follows:

“(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

Method of service Step required
First class post, document exchange or other service which provides for delivery on the next business day Posting, leaving with, delivering to or collection by the relevant service provider

(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.”

    1. The relevant words in Section IV are to be found in CPR r 6.40(2):

“(2) Where a party serves a claim form or other document on a party in Scotland or Northern Ireland, it must be served by a method permitted by section II (and references to ‘jurisdiction’ in that Section are modified accordingly) or Section III of this Part and r.6.23(4) applies.”

    1. It is clear from CPR r 6.3(2) that a company may be served by any method permitted under CPR Part 6 including by first class post (or by any method permitted under the Companies Act 2006).

    2. There is a dispute between the parties on a fundamental matter of interpretation. The Claimant contends that r 7.5(1) is applicable: all he has to show is that “the step required” was taken within the six month period of the claim form’s validity. He says that r 7.5(2) only applies to service “out of the jurisdiction” and that accordingly he does not need to prove that it was actually served. Mr Glen, however, submits that service in Scotland is “outside the jurisdiction” and, therefore, that actual service must be shown to have taken place within the six months: see Brightside v RSM UK Audit, cited above, at [16]-[18]. Andrew Baker J clearly proceeded on the basis that service in Scotland or Northern Ireland would be “outside the jurisdiction”. I shall do the same.

    3. It is now necessary to consider how these provisions relate to CPR r 6.14, which provides:

“A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).”

    1. It is not in dispute that the documents were posted on 23 August or that they arrived at the Defendant’s registered office on 24 August. As at the moment of delivery, were they served or not? Mr Callus argues that they were, and that service had thus been effected, as a matter of fact, on 24 August. At that moment, the claim form had not lost its validity. (Had it been actually served on 25 August, it would of course have been too late.) At some point, CPR r 6.14 requires that service shall be deemed to have occurred on the second business day after completion of the relevant step (i.e. on 25 August). But that provision applies to “a claim form served”. (It does not include the words ‘or purportedly served‘.) In my judgment, as at 24 August (up to midnight), the claim form fits that description. It was “a claim form served”. By reason, however, of CPR r 6.14, that (valid) service is deemed to have taken place on 25 August. That is not true, as a matter of fact, but as a matter of law the parties are to proceed as if that service had taken place on 25 August.

    2. The word “served” appears twice in the sentence quoted above. When one comes to interpret “a claim form served” at the beginning of r 6.14, it cannot be referring to service on the deemed date. It is a reference to service whenever it actually occurred. The rule can give rise to a fiction, if it is clearly expressed, but it cannot rewrite history altogether and does not purport to do so. Indeed, the opening words recognise that service may in fact have occurred on a different (including an earlier) date. (See also the discussion along similar lines in T&L Sugars, cited above, at [34]-[37].)

    3. It follows that I would not agree with Andrew Baker J when he says, in Brightside at [26], that it is “incorrect and unhelpful” to speak about when service “actually occurs”. The rule requires that we deem the service which “actually occurs” to have occurred on a different date. We have to take cognisance of it to that extent at least, and to understand the significance of the distinction. I note that in T&L Sugars, at [39], Flaux J (as he then was) clearly explained the relationship between actual and deemed service.

    4. Mr Glen argues, on the other hand, that CPR r 6.14 requires additionally that the claim form be treated as if it was invalid at the time of service or purported service. I do not think that can be read into the words. The “claim form served” does not change its character simply because the date on which it was in fact served is deemed to be different. The rule gives rise to a legal fiction for reasons of public policy; namely, to achieve certainty and predictability for the parties. It does not necessarily also have the effect of creating a separate legal fiction (i.e. that the claim form was invalid when served). The fiction is expressly concerned with the date of service – not the validity of the claim form. The rule says nothing about its validity at the time of actual service – whether as to its length or its expiry.

    5. The Defendant’s interpretation (and that of Andrew Baker J) would entail a claimant’s lawyers having to take the relevant “step” at least one day earlier because, even though they know the claim form will still be valid when it is served (in this case on 24 August), it will have to be treated by them as if its validity was going to expire one day earlier. That is because of what Master McCloud referred to in Paxton Jones, at [32], as being the “dead period” for a day or two at the end of the claim form’s validity.

    6. If service of this claim form was to have been in England, it could have been posted under r 7.5(1) up to and including the evening of 24 August. If it was to be served in Scotland, however, the required step (i.e. posting) would have to take place, at the latest, on 22 August. Otherwise, whenever it arrived, service would be deemed to take place after expiry.

    7. That complication seems to me to go beyond the words and the intent of CPR r 6.14. In order to comply with the deeming provision, all one has to do is to pretend that the date of service was 25 August. There is no need to strive to construct a whole counter-factual history to go with the fiction expressly stipulated. If one attempts to do so, the exercise becomes uncertain and confusing, as the supposed “dead period” illustrates.

    8. The Defendant’s argument is not supported by the express words of the rule and must, therefore, depend on necessary implication. Merely because the rule requires the court and the parties to proceed on the fictitious basis that the date of service was 25 August, it does not follow, as a matter of logic, that service took place after expiry. It is in the nature of fiction that it does not have to reflect reality. In the real world, if service took place on 25 August it would necessarily be the case that the claim form had expired. If the date of service is transposed to 25 August on the basis of a fiction, however, that is not so.

    9. Unlike the present case, Paxton Jones was an instance of service within the jurisdiction, under CPR r 7.5(1). There, the relevant “step” was taken when the documents were posted on 17 January 2017, but they were received on 18 January (i.e. after the time permitted for service, which had been extended to 17 January by order of Master Fontaine). On the facts in the present case, involving service outside the jurisdiction, it is not merely a question of posting on 23 August, as being the “step required”. It was accepted at the hearing before me that the claim form arrived in Edinburgh on 24 August – before the relevant expiry time.

    10. Although the facts are different in those respects, my understanding of the rules would, I think, be consistent with the careful analysis of Master McCloud in the Paxton Jones case. She expressed the view, at [38], that “…the deeming provisions operate as a means to ensure that it is clear to the parties what date is to be used for the purpose of calculating such things as the date for service of acknowledgement of service or defence”. The Master readily admits, at [31], that there is nothing express in the rules to say that the deemed service provisions are “disapplied” for the purpose of calculating the period of validity. The wording is simply silent on the question. That is why she felt she had to propose her “purposive interpretation of the rules” (at [33]). It is almost certainly the case that r 6.14 was silent on the subject of validity because the draftsman was not concerned with that topic, which is adequately covered elsewhere – for example, in r 7.5(2) which allows six months in a case like the present (without the complication of a “dead period”).

    11. The Master, in her review of recent law and practice, referred to the decision of Flaux J in T&L Sugars, cited above, at [31], where he said “CPR 6.14 is looking at when service will be deemed to have taken place for the purpose of other steps in the proceedings thereafter, beginning with the filing of the acknowledgement of service”. He also endorsed the commentary in the then current edition of Blackstone’s Civil Practice, at 15.1, to the effect that deemed dates of service “are now primarily of use in computing the time for taking the next steps in the litigation”. In this respect, their views on the limited function of the deeming provision seem to me consistent and compelling. CPR r 6.14 applies to service in the United Kingdom and must obviously be given the same interpretation whether it is being addressed in the context of England & Wales or, as here, that of Scotland.

    12. Mr Glen points, however, to the reasoning of Andrew Baker J in Brightside (cited above), at [18], who observed:

“…for a claim form served outside the jurisdiction, CPR r7.5(2) requires that the claim form be served. i.e. (see Godwin’scase and Anderton’s case) that the date of service be within six months of issue. (If service is in Scotland or Northern Ireland, that date of service will be the date fixed by CPR r 6.14 …)”

  1. The two cases to which the Judge was referring were Godwin v Swindon Borough Council [2002] 1 WLR 997 and Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174, both decisions of the Court of Appeal in the context of an earlier corresponding provision. They were to the effect that, because of the deeming provision then applying, service of the claim form had not been effected within the relevant time limit (four months). There was also the consequence that service was deemed not to have taken place within the limitation period. These outcomes were tackled by an amendment to the rules in 2008 – but only with regard to claim forms served within the jurisdiction (i.e. within England & Wales). The Judge took the view, therefore, that the Court of Appeal reasoning would still be valid vis a vis service of such a document in Scotland or Northern Ireland. Accordingly, in such a case, service will not be achieved merely by taking “the relevant step” (e.g. first class postage). It will be necessary also that service take place within the period of validity and that, moreover, (he said) would have to be determined by reference to the deemed date as defined in CPR r 6.14.

  2. Mr Callus submits, however, that the deeming provision should not impact on the validity of the document – but only on the date of service. That is difficult to reconcile with the conclusion of the Court of Appeal in the Godwin case, in so far as it held that the deeming provision was effective to take the date of service outside the limitation period. Nevertheless, one has to do one’s best to construe the language of the relevant provisions, and their relationship to one another, in their current context and according to logic.

  3. In trying to extricate themselves from these uncertain waters, both counsel sought guidance from commentary in the White Book, but that carries relatively little weight, especially in the case of apparent inconsistencies. As I have already illustrated, however, these conflicting currents have recently been navigated with considerable success by Master McCloud in her reserved judgment in Paxton Jones. In her view, all that the claimant had to show was that the relevant “step required” under CPR r 7.5(1) (e.g., as here, committing the document to the first class postal service) had been taken within the period of validity. It was not necessary to show that service was actually effected in this jurisdiction. That does not apply, of course, in the case of Scotland or Northern Ireland, but the facts in this case happen to be that not only was the document posted, but it also arrived (on 24 August) before the expiry of its validity. The question I must consider, therefore, is whether the deeming provision gave rise, despite that, to the fiction that its validity had expired before service (or possibly that it was lost at some point thereafter).

  4. The headnote in the Brightside case purports to summarise the finding as being to the effect that CPR r 6.14 fixes the date on which service of a claim form occurs “for all CPR purposes”. Indeed, the Judge himself, at [20], expressed it in these terms, namely that “…CPR r 6.14 fixes the date on which service of a claim form occurs, for all, not only for some, CPR purposes”. Master McCloud was clearly troubled by this at [28]. She did not find it easy to reconcile these words with what the Judge had said at [24(ii)]; namely, that CPR r 7.5(1) “…defines what must be done within four months by a claimant who serves within the jurisdiction for the resulting service of the claim form to be valid”.

  5. The Master thought that the view the Judge expressed at [20] was obiter in so far as it went beyond the issue of CPR r 7.7, which was the topic with which he was primarily concerned. In any event, she took the view, at [29], that in this respect the Judge’s conclusion was “incorrect” and that, accordingly, she was not obliged to follow it, whether as a matter of precedent or convention: see Coral Reef Ltd v Silverbond Enterprises Ltd[2016] EWHC 874 (Ch), at [26]-[51]. Turning to the present case, it seems clear that Andrew Baker J’s parenthetical observations about Scotland and Northern Ireland, at [18], were indeed obiter – whereas I have to address those circumstances head on. In coming to a different conclusion, therefore, I do not believe that I need to presume that he was either “incorrect” or “clearly wrong”.

  6. Mr Glen suggests that the Master’s judgment has been misinterpreted by the Claimant’s advisers. It should be confined, he says, to the interaction between CPR r 6.14 and r 7.5(1). It identified a distinct rule for determining the date by which a claimant must act if a claim form is to be validly served within this jurisdiction. That is a “special case” and he argues that she was not concerned directly with CPR r 7.5(2), which is the subject matter of the present dispute. That is right, although it does not mean that her analysis of the deeming provision is of no relevance at all.

  7. I would certainly not suggest that I have found the point easy to determine, but I have in the end come to the conclusion that in this respect I agree with the Master’s reasoning (and that of Flaux J in T&L Sugars). Although it was no doubt unwise of the Claimant’s advisers to go right to the wire on this, the fact remains that they had six months in which to serve the claim form and this was achieved with just hours to spare. They had six months because that is provided in CPR 7.5(2). From the moment of service it became “a claim form served within the United Kingdom”. (It would have made no sense for anyone to have said on 24 August “the claim form is deemed to have been served tomorrow”.) Thereafter it was to be treated as if served on 25 August. That is perfectly workable for procedural purposes, such as calculating due dates, but I would not accept that the “deeming” provision can of itself be taken as cutting down the period of the claim form’s validity or removing the jurisdiction of the court, which are matters of substance. It would require clear and unambiguous wording to achieve that.

  8. I would therefore grant the Claimant the declaratory relief he seeks in respect of the validity of service.

 

BE CAREFUL THOUGH: LOOK WHAT THE JUDGE SAID ABOUT THE CLAIMANT’S APPLICATION FOR RETROSPECTIVE RELIEF

  1. In case his argument on service failed, the Claimant’s advisers made an application to guard against the consequences. They would have sought to put matters right in retrospect. I accept Mr Glen’s submission that the need for litigants and their advisers to serve a claim form within its period of validity is not a matter of mere technicality: it will not do simply to say “We only missed it by a matter of hours”.

  2. It is possible, as both sides agree, for a court in effect to breathe fresh life into a claim form, even though it has lost its validity, by granting the necessary extension(s) retrospectively, but the rules will be narrowly construed even in the case of a prospective application: see e.g. Hoddinott v Persimmon Homes [2008] 1 WLR 806, at [14], per Dyson LJ.

  3. The court is permitted to extend time retrospectively only if certain criteria are fulfilled in accordance with CPR r 7.6(3). Those criteria appear to be based, as a matter of policy, on a “no fault” regime (my phraseology). Such an order may only be made if (a) the court has failed to serve the claim form, (b) the claimant has taken all reasonable steps to comply with CPR r 7.5 but has been unable to do so, and (c) the claimant has acted promptly in making the application (my emphases).

  4. I cannot see that any of these hurdles has been overcome by or on behalf of this Claimant. Matters were left to the very last moment. His solicitor had looked up the law and concluded, rightly or wrongly, that she could comply with the time limits if she committed the document to the first class postal service on 23 August. She was taking a gamble in doing so, for whatever reason, and certainly cannot claim to have taken “all reasonable steps”. The application was not made promptly either, since it is dated 11 October.

  5. It is necessary to have regard to the warning of Dyson LJ, in Hashtroodi v Hancock [2004] 1 WLR 3206, to the effect that a solicitor who leaves the issue of a claim form almost until the expiry of the limitation period (as here), and then leaves service of the claim form until the expiry of the period of service is imminent (as again happened here), is courting disaster. (See also the Vinos case, cited above at [5].)

  6. A number of excuses were put forward, none of which carries conviction against the background of the disciplined regime of the CPR. They included such matters as the difficulties of engaging specialist lawyers with appropriate funding arrangements; the possibility of without prejudice negotiations; the last minute confirmation that the Defendant’s solicitors would not accept service; the need to obtain translations of some of the articles complained of; and the supposed absence of prejudice caused to the Defendant’s case by the delays. These matters would not justify the court in taking the unusual step of granting an extension retrospectively.

  7. Other points were raised which were also unconvincing. Reliance was placed, for example, on CPR r 3.9 (relief from sanctions) and r 3.10 (rectification of errors of procedure). Yet neither of these provisions seems to me to be apt for the present circumstances. As I have said, a claimant who consciously chooses to leave such important matters to the very last minute takes a gamble and cannot expect the assistance of the court in going back to square one. I would not see any reason to help him or his solicitors to avoid the disciplines of the CPR over these long delays. He certainly cannot blame circumstances beyond his control – nor can it be said to be the Defendant’s fault that he found himself in this predicament. I would refuse relief under any of these provisions had I come to the opposite conclusion on the validity of service. Nor is it right to suggest that such an indulgence would be neutral so far as the Defendant is concerned. If I were to grant any such relief, the Defendant would be bound into time consuming and expensive litigation and would also have been deprived ex hypothesi of a good limitation defence so far as the claim in defamation is concerned.

THE OUTCOME

Although the claimant succeeded on the service point he failed on a jurisdiction point.  The proceedings were stayed on the grounds that the proper forum was Scotland.