THE DEFENDANT IS NOT THE CLAIMANT’S KEEPER: WOODWARD DECISION ON SERVICE OF THE CLAIM FORM OVERTURNED ON APPEAL: LEAVING SERVICE LATE IS SIMPLY COURTING DISASTER

There is a brief report on Lawtel this morning showing that the decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) has been overturned on appeal.   It highlights the dangers of leaving service of the claim form until the last minute.

THE DECISION AT FIRST INSTANCE

The claimant served a claim form (within time) on solicitors who were not nominated to accept service.

The Master exercised his discretion under CPR 6.15 on the grounds that the defendant should have pointed out the error to the claimant’s solicitors.   The case is considered in detail here. 

THE DEFENDANT’S SUCCESSFUL APPEAL

The Lawtel summary indicated that the appeal was heard on 26/07/2018 by HH Judge Hodge QC.

  • The rules relating to service of the claim form were not to be construed in a way similar to relief from sanctions.
  • There had not been a refusal by the defendant to cooperate in relation to procedural issues – mere a failure to point out an apparent error.
  • It was not playing “technical games” to allow the claim form to expire without responding to technical service.
  • The claimants had courted disaster by waiting until serving the claim form until the last minute.
  • It was unreasonable for the claimant to delay and run the risk of failing to serve within the period of validity.

THE DANGERS OF LEAVING SERVICE LATE

This is another case that highlights the danger of leaving service of the claim form late.   The claimant stated that it was waiting for the particulars to be drafted. The judgment indicates that the remedy is simple. Serve the claim form and apply – in advance of the date of service of the claim form – for an extension. The law relating to prospective extensions of time is relatively generous.  By way of contrast the law relating to late service of the claim form is extremely onerous.

A REMINDER FROM KENNEDY

In Kennedy v The National Trust for Scotland [2017] EWHC 3368 (QB) Sir David Eady stated:

“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.”

SEE THE WEBINAR

This may be a good time to remind people that there is a webinar on avoiding problems with service of the claim form. Available here.