“NO CREDIT TO OUR CIVIL JUSTICE SYSTEM” WHAT CONSTITUTES TAKING STEPS TO BRING THE CLAIM FORM TO THE ATTENTION OF THE DEFENDANT?

July 3, 2014 · by · in Civil Procedure, Service of the claim form, Serving documents

“This depressing litigation reflects no credit on our civil justice system. It is yet another example of wasteful satellite litigation unconcerned with the merits of the underlying claim. The Claimant alone escapes censure”

Tomlinson L J in Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898 was considering an issue relating to service.  One can detect a sense of exasperation relating to procedural arguments. This was a case where court errors had led to a major problem in relation to service of the claim form. It was resolved by the Court making an order  under CPR 6.15 – that the steps already taken constituted good service.

THE PROCEDURAL HISTORY

This was a professional negligence action. The claimant and defendants had taken numerous pre-action steps. The defendant requested service of the claim form on the defendant’s solicitor.

  • In August 2012 the claimant’s solicitor sent draft claims forms to the Salford Business Centre with a letter stating that the forms were to be issued for solicitor service.
  • The Salford Business Centre issued the claim form but erroneously sent it directly to the defendant’s address on the 14th September 2012, together with the response pack and notice of issue.
  • Salford failed to send a notice to the claimant’s solicitor of the deemed date of service.
  • The defendant’s solicitor wrote to the claimant’s solicitor stating that it was unclear whether the proceedings had been formally served, but indicated that they were treating it as a live claim.
  • On the 14th January 2013 the four month period of validity for service of the claim form expired.

SHOULD THE COURT GRANT AN EXTENSION OF TIME FOR SERVICE AFTER TIME HAD EXPIRED?

  • In May 2013 the claimant made a without notice application to extend time for service of the claim form under CPR r7.6 or alternatively for an order dispensing with service of the claim form pursuant to CPR r6.16 .
  • An extension of time was granted on an ex parte basis.
  • The claim form was served and the defendant indicated that they would dispute jurisdiction.
  • However rather than disputing jurisdiction, the procedure prescribed in Hoddinott –v- Persimmon Homes Ltd [2008] 1WLR 806 they issued an application to set aside the ex parte order and strike out the proceedings.
  • At the hearing the claimant relied, without any real notice, on CPR 6.15 which provides that a court can order that the steps already taken to bring the claim form to the attention of the defendant constitutes good service.

WAS THERE A GOOD REASON TO AUTHORISE SERVICE BY ANOTHER METHOD? THE JUDGMENT AT FIRST INSTANCE 

The judge  at first instance held that there was no good reason to authorise service by another method for essentially three reasons:-

(1)    There has never been a difficulty about effecting service and it was not a case of a Defendant being evasive;

(2)    Where parties agree to service solicitor to solicitor it is wrong to go behind that agreement; and

(3)     It is wrong to allow a Claimant “to sidestep the rigours of CPR 6.16” by reliance upon CPR 6.15

However the judge had not been referred to the decision of the Supreme Court in Abela –v- Baadarani [2013] 1 WLR 2043 (which had been decided six weeks before the first instance case was heard) where guidance was given on the provisions of CPR 6.15.  Those principles have been considered in detail in an earlier post on this blog.

THE APPEAL:  IF THE PROPER CASE WAS CITED THERE WAS A GOOD REASON

The Respondent accepted that the absence of consideration of Abela meant that the Court of Appeal should consider the matter afresh. The Court of Appeal considered:

  • The Court in Salford had made two errors.  Firstly purporting to serve the documents when asked not to do so; secondly failing to inform the claimant that service had taken place.
  • The claimant’s solicitors were ignorant of what the court at done. The criticisms that could be made of the claimant’s solicitors were “muted”
  • It was clear that the claimant intended to pursue the claim.
  • The defendant knew everything they needed to know about the claimant’s claim.
  • The correspondence , objectively viewed, gave the impression that the claim was acknowledged to be live.

Tomlinson LJ stated:

“In my view there is an overwhelmingly good reason to order under CPR 6.15(2) that the steps already taken to bring the Claim Form to the attention of the Defendants constituted good service.”

 SERVICE IS NOT WITH A SMILE

  • Claimants with service problems should remember 16.15(2) is a possible reserve argument.
  • Claimants with service problems should definitely read and know about Abela –v- Baadarani
  • This is the second case in recent weeks where administrative errors, sometimes major administrative errors, have been made by the courts.

USEFUL POSTS ON SERVICE OF THE CLAIM FORM

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