WHAT A DAY FOR CLAIM FORM CASES: DECISION IN THE COURT OF APPEAL
No sooner was the (metaphorical) ink dry on the post on the Abbott -v- Econwall case when the Court of Appeal decision in Barton -v- Wright Hassall  EWCA Civ 177. In the case the judge allowed an application under CPR 16, in the Barton case the Court upheld a decision not to grant such an order. The key difference between the two cases may well be that the solicitors for the defendant in the Barton case had not engaged in any kind of “game playing”, in fact they had positively encouraged the claimant to serve the claim form.
CPR 6.15, provides:
“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”
- A claimant had not validly served when proceedings were served by email.
- The judge was entitled to conclude that this was not an appropriate case in which to declare that service by email be deemed to be good service.
- No special allowance was made because the claimant was a litigant in person.
- The claimant issued proceedings and was notified that a solicitor would accept service.
- The claimant sent the claim form and accompanying documents as an attachment to an email on the 24th June 2013 (the last date for service was the 24th June 2013).
- The defendant stated that service by email was not good service and the claimant applied for an order that the service be deemed good service.
- The district judge refused the application. On appeal the circuit judge dismissed the appeal stating:
“The conclusion that I have come to is that CPR 6.15 is not there to protect litigants in person or those who do not know the rules. It is there to protect those who for some reason have been unable to effect service satisfactorily within the rules. The issue therefore really is whether ignorance of the rules for a litigant in person is a reason for not complying with the rules. It cannot be so. The rules are there for all. They need to be observed by all and unless and until the Rules Committee makes rules that have application for litigants in person alone they must apply to all. There is no reason why Mr Barton could not have properly served the claim form within time. There was nothing preventing him from doing it by post; there was nothing preventing him from doing it personally; there was nothing preventing him from doing it in accordance with the rules, had he been aware of them.”
THE DECISION ON APPEAL
It is fair to say that in paragraph 10 of his judgment the judge appears to pose the question “why was it that the claim form could not have been served?” as a threshold question, before asking himself whether there was a good reason to make the order sought. Had he left the matter there, there would in my judgment have been much force in Mr Elgot’s submission that the judge had failed to have regard to all the various factors which were relevant, and focused too much attention on the paucity of reasons for non-service. But the judge did not leave it there. He pointed out next, correctly, that the critical consideration in deciding whether there was a good reason to validate service was whether or not the claim form and its contents had come to the attention of the proposed recipient. He went on to refer to paragraphs 33-38 of Abela, pointing out, again correctly, that this critical consideration was not itself enough. He reminded himself in particular of the fact that the purpose of service of proceedings was to bring the proceedings to the attention of the defendant, and that in considering the conduct of the claimant the relevant focus was on why the claim form could or could not be served within the period of its validity.
Thus, when the judge said that the whole focus of the appeal boiled down to whether there was any reason why Mr Barton was not able to serve the claim form, he already had in mind that the critical question of whether the claim form had come to the attention of the defendant was to be decided in the claimant’s favour. What he was looking for was whether there was anything in the other circumstances which could be advanced on the claimant’s behalf to allow the conclusion that there was a good reason to validate service. He concluded that there was nothing in the way the claimant had conducted himself that could be weighed in his favour. There was no reason why he could not have served within the generous time limit allowed for doing so. That conclusion was one which was open to the judge: indeed it is difficult to see how he could have reached any other conclusion.
It follows that Mr Elgot’s reliance on the proposition derived from Power, that the court may in principle grant relief under CPR 6.15(2) notwithstanding the fact that all reasonable steps have not been taken to effect service, in this case gets him nowhere. The claimant had simply not taken advantage at all of the generous time period allowed for service, when no obstacles stood in his way.
The judge also considered whether the claimant should be excused from complying with the rules because of his status as a litigant in person, and concluded that he should not be. There was ample material on which he could so conclude in this case: the very clear terms of the rules about electronic service, the fact that the claimant was aware that some solicitors did not accept service by email, and the fact that the claimant did nothing to check directly with BLM about whether he could serve by email. There was no evidence that Mr Barton had even looked at the rules. The judge was entitled to take the view that this was not a case where any special indulgence needed to be afforded to a litigant in person, as might, for example, be appropriate where the rule in question was difficult to find or ambiguous to a non-lawyer.
The judge did not specifically consider whether there was anything in the defendant’s conduct in relation to service which could be criticised although, as a point much stressed on behalf of Mr Barton, he cannot have failed to have been aware of it. The cases do show that technical game-playing by a defendant will count against him. I am wholly unable to accept, however, that any criticism can be levelled at the conduct of the defendant or its solicitors in this case. The claimant was clearly told by BLM on 26 March that no extension would be granted for service of his proceedings, and on 17 April that service of the claim form and particulars of claim was awaited. He was in possession of the address for service. Mr Elgot did not suggest that when BLM received the email of 24 June 2013 they were under a professional duty to inform the claimant of the defect in service. Given the absence of any evidence from BLM, I am prepared to assume in the claimant’s favour that BLM did appreciate fairly quickly that the service was irregular, and that they are likely to have appreciated the existence of the impending deadline. Even on that basis, however, they would need to take their clients’ instructions before expressly alerting the claimant to the defect in service, thereby exposing their clients to an action which would otherwise be statute barred. Their conduct did nothing to encourage Mr Barton to believe that he had effected good service. On the contrary, they are to be commended for reminding the claimant of the obligation to serve the claim form. Factual comparisons with other cases are generally unhelpful, but the case is quite unlike Power, on which Mr Elgot placed so much reliance, where the defendants had positively lulled the claimant’s solicitors into a false sense of security about whether the proceedings had been served, or Abela itself where the defendant’s conduct in instructing his lawyers not to give his address was conspicuously un-cooperative. To characterise anything done by the defendant or BLM as technical game-playing would, in my judgment, be most unfair to them.
SUMMARY OF THE AUTHORITIES
Lord Justice Floyd considered the relevant authorities and this summary is similar to Judge Hacon in the Abbott case
i) In deciding whether steps should be validated under the rule the court should simply ask itself whether there is “good reason” to do so: (Abela ).
ii) A critical factor in deciding whether to validate service under the rule is that the document has come to the attention of the party intended to be served: (Abela ). That is the whole purpose of service: (Abela , ).
iii) However it is not by itself sufficient that the document was brought to the attention of the opposite party: something more must be present before there is a “good reason”: (Abela ).
iv) In deciding whether there is a “good reason”, there will inevitably be a focus on the reason why the claim form cannot or could not be served within the period of its validity, although this is by no means the only area of inquiry: (Abela , Kaki ).
v) The conduct of the claimant and of the defendant is relevant: (Kaki ). It is not necessary, however, for the claimant to show that he has taken all the steps he could have reasonably taken to effect service by the proper method: (Power ).
vi) The mere fact that one party is a litigant in person cannot on its own amount to a good reason, although it may have some relevance at the margins: (Hysaj -; Nata Lee ).
vii) If one party or the other is playing technical games, this will count against him: (Abela ).
viii) An appellate court will only interfere with the judge’s evaluation of the various factors in the assessment of whether there is a good reason if he has erred in principle or was wrong in reaching the conclusion which he did: (Abela ).
- Extending time for service of the claim form: a risky business
- When two rules collide: Part 36 offer does not override need to serve the claim form.
- When is personal service effected? A case to send to all your process servers.
- Another claim form not served properly
- Served a copy claim form by mistake? There may be a way out but be careful.
- Service of the Claim Form: relief from sanctions and challenging the jurisdiction: a complex mix?
- There are now unexploded grenades in your filing cabinet: serve proceedings promptly and properly.
- Service of the Claim Form: Further traps for the Unwary
- Late Service of the Claim Form, extensions of time and sleepless nights
- Service of the Claim Form: “last known address” points to watch
- Service of the Claim Form: Essential Points before the Essential Checklist
- A Dismal Catalogue of Confusion and Error
- Delaying Service of the Claim Form: Dicing with Procedural Death
- Service of the Claim form: Another claimant comes to grief
- Service of the Claim Form and a good reason: And so to Bed
- Service of the Claim Form can be a problem for defendants too.
- Claim Forms: Declaration that steps taken constitute good service.
- Service of proceedings the “essential checklist”.
- Service of proceedings: adding to the essential checklist
- Service by email is good service: family court decision.