FIRST CLAIM FORM CASE OF THE YEAR: AND THERE'S A BRIGHTSIDE

January 10, 2017 · by · in Case Management, Civil Procedure, Service of the claim form, Serving documents, Uncategorized

Every year brings a batch of cases relating to service of the claim form. This year starts with an unusual issue. In Brightside Group Ltd -v- RSM UK Audit LLP [2017] EWHC 6 (Comm) Mr Justice Andrew Baker considered  issues relating to service of the claim form and the provisions of CPR 7.7.

CPR 7.7

(1) Where a claim form has been issued against a defendant, but has not yet been served on him, the defendant may serve a notice on the claimant requiring him to serve the claim form or discontinue the claim within a period specified in the notice.

(2) The period specified in a notice served under paragraph (1) must be at least 14 days after service of the notice.

(3) If the claimant fails to comply with the notice, the court may, on the application of the defendant–

a. dismiss the claim; or

b. make any other order it thinks just.

KEY POINTS

  • Where a claimant had been required to serve a claim form pursuant to CPR 7.7 the date for service was the deemed date of service and not the date it arrived at the office.
  • However a failure to comply with the time period of a CPR 7.7. demand did not mean that the claim was struck out or failed due to lack of jurisdiction.
  • In the absence of prejudice to the defendant the judge refused

THE CASE

The claim form was issued on the 26th April 2016. It was not served immediately.  On the 27th May 2016 the defendant gave notice under CPR 7.7. requiring the claimant to serve or discontinue within 14 days. The defendants ‘solicitors were instructed to accept service.

On the 10th June a trainee solicitor for the claimant form presented herself at the ground floor reception of the building where the defendants’ solicitors practised. She did not gain access to the solicitor’s office but left package with a messenger for a company engaged by the defendants’ solicitor.  The document was signed purportedly on behalf of the defendants’ solicitors.

THE APPLICATIONS

The defendants made an application for dismissal of the claim under CPR 7.7(3) on the ground that there had not been service or discontinuance and for a declaration under CPR 11 on the ground that service of the claim form had been invalid.

THE JUDGMENT

The judge considered the two strands of the defendants’ applications.

  1. The application was put by Mr Butcher QC for the defendants as follows:
i) The Claim Form was not served on or before 10 June 2016, because (a) if what Miss Evans did on that day amounted to delivering the Claim Form to or leaving it at the relevant place for the purpose of effecting service, the Claim Form was thereby served on 14 June 2016 (see CPR 6.14), alternatively (b) what Miss Evans did on 10 June 2016 did not amount to delivering the Claim Form to or leaving it at the relevant place in any event. CPR 6.14 provides that:

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).

ii) The purpose of CPR 7.7 was to entitle a defendant, by notice, to shorten the validity of a claim form; in effect, to replace the obligation to satisfy CPR 7.5 with an obligation to comply with the notice. The court’s approach to a failure to serve within the time limit set by a valid CPR 7.7 notice should therefore be materially the same as its approach to a failure to comply with CPR 7.5.

iii) If that be the approach, this was a classic case for dismissal of the claim: for no reason, let alone any good reason, the claimants left it until the last minute; as a result, they served ‘out of time’, and after properly arguable limitation defences had accrued. The court should therefore dismiss the claim, leaving the claimants to start again and take their chances on the limitation defences.

  1. In response, the argument of Mr Potts QC for the claimants was that:
i) What Miss Evans did on 10 June 2016 amounted to leaving the Claim Form at the relevant place on that date and that was sufficient to comply with the requirement of the CPR 7.7 notice that the Claim Form be served by 10 June 2016, notwithstanding CPR 6.14.

Alternatively:

ii) A CPR 7.7 notice does not supplant CPR 7.5. The purpose of CPR 7.7 is to enable a defendant to get valid proceedings moving more quickly than would be the case if the claimant served only late in the period of validity of the claim form, or (as the case may be) to get rid of proceedings the claimant does not intend to pursue through early discontinuance rather than only through an ultimate failure to comply with CPR 7.5.

iii) In its discretion, the court should not dismiss the claim.

Discussion
  1. In my judgment, for the reasons I give below, Mr Butcher QC was correct to submit that if the Claim Form was delivered to or left at the relevant place, for the purpose of CPR 7.5(1), on 10 June 2016, then so far as the CPR are concerned, the date on which service occurred as a result was 14 June 2016 by operation of CPR 6.14. So I shall not lengthen this judgment by dealing in detail with the evidence as to what precisely Miss Evans did and how it came about, in particular, that she handed the service package to Mr Smalley in the loading bay area. On that evidence, Miss Evans did what she was directed to do, so as to effect a delivery to Clyde & Co, by the landlord’s main reception and security personnel, having told them in terms that she “had to serve the envelope and enclosures on Clyde & Co today“. In my judgment, that did suffice to comply with CPR 7.5(1). In other words, the Claim Form was indeed delivered to or left at the relevant place (Clyde & Co’s address for service) on 10 June 2016.
  2. In accordance with its plain terms, notice duly given under CPR 7.7 will be a notice requiring that within the period specified the claimant either (a) serve the claim form or (b) discontinue the claim. Where, as here, the claimant has served, the question whether there has been a failure to comply with the notice is the question whether the claimant served within the period specified by the notice. In other words, when did service take place? That is squarely and specifically the question addressed and answered by CPR 6.14, for claim forms served within the jurisdiction (in fact, CPR 6.14 also applies to claim forms served outside the jurisdiction but within the United Kingdom). The answer given by CPR 6.14 to the question of when service took place is not the date on which the claimant took the step referred to in CPR 7.5(1) relevant to the method of service employed. The answer is the second business day after completion of that step, because for the purpose of the CPR that is deemed by CPR 6.14 to be the date on which service took place.
  3. In Godwin v Swindon Borough Council [2002] 1 WLR 997 and Anderton v Clwyd County Council (No.2) [2002] 1 WLR 3174, it was decided that the deemed date of service of a claim form provided by the CPR is a fixed date. It is not merely a presumption, rebuttable by proof by a claimant that the claim form was actually received by a relevant individual(s) on some earlier date, following steps taken by it to deliver it to them or bring it to their attention, or proof by a defendant that the claim form was only in fact received on some later date. When those cases were decided, the deemed date of service was set by CPR 6.7 and was different for different methods of service (as it is now, under CPR 6.26, for documents other than claim forms served within the United Kingdom), whereas now CPR 6.14 provides a common deemed date of service for claim forms served within the United Kingdom, whatever the method of service; but that does not in my view affect the decision in the cases as to the nature of the deemed date. CPR 6.14, in other words, fixes the date upon which service takes place, for the purpose of the CPR, for claim forms served within the United Kingdom.
  4. CPR 7.5 creates and defines the important notion that a claim form has a limited lifespan, a temporal validity, following its issue. That notion is created and defined by imposing upon the claimant an obligation in relation to service, to be complied with within a defined period after issue. The claim form only validly founds the court’s jurisdiction to try the claimant’s claim on its merits if that obligation is complied with (or if, exceptionally, any non-compliance is waived by the court in the exercise of its discretion to extend time or cure any other irregularity in relation to service). When Godwin and Anderton were decided, CPR 7.5 required that within four months after issue of the claim form, or within six months if service was outside the jurisdiction, the claim form had to be “served on the defendant“. Therefore, given the nature of a deemed date of service under the CPR, that date had to fall within the stated period, and Godwin and Anderton so decided; it was not sufficient to show that within the period of validity of the claim form the claimant had done what he needed to do to effect service. I agree with Mr Butcher QC that it is inconceivable a different decision would have been reached as to what was required to comply with CPR 7.7, which existed in the same terms as now when Godwin and Anderton were decided, and was not amended in 2008. For both CPR 7.5 (as it stood then) and CPR 7.7, there was room to argue, I think, that compliance should be tested by when the claimant had done what he was required to do to effect service, rather than by the deemed date of service resulting under CPR 6.14, since in both cases the focus was upon the claimant effecting service rather than upon the defendant responding to it. But the Court of Appeal decided against that argument and that binds me.
  5. CPR 7.5 was amended in 2008, so as to reverse the end result of Godwin and Anderton for claim forms served within the jurisdiction. The claim form must still “be served” within six months in the case of service out of the jurisdiction (CPR 7.5(2)). For a claim form served within the jurisdiction, however, the requirement is now not that the claim form be served within four months, it is that the step taken by the claimant so as to effect service be completed within four months. More precisely, CPR 7.5(1) requires that the ‘step required’ to be taken by the claimant, as there set out in a table, e.g. posting by first class post in the case of postal service, be completed “by 12.00 midnight on the calendar day four months after the date of issue“. CPR 6.14 was introduced by the same amendment, standardising the ‘deemed date’ of service for claim forms served within the United Kingdom at two business days after that ‘step required’ is completed. The table of ‘steps required’ was put in CPR 7.5(1) and a cross-reference to that was put in CPR 6.14; it could equally have been done the other way round; and in my view nothing turns on which drafting technique was adopted.
  6. It is to be noted that: there have always been two different questions, (i) what must the claimant do to effect service, and (ii) when do the CPR say that service, in consequence, takes place; the distinction between the two was not introduced by the amendment to CPR 7.5; moreover, that amendment did not touch question (ii); rather, it re-defined the temporal validity of a claim form for service within the jurisdiction so that it referred to question (i) rather than to question (ii). (I also note, for completeness, that the distinction between the two questions is reflected in CPR 6.15, which contains the court’s power to permit service by an alternative method or at an alternative place. Any order for alternative service is required by CPR 6.15(3) to specify, separately, (a) the method of service (answering question (i)), and (b) “the date on which the claim form is deemed served” (answering question (ii)).)
  7. Thus, the result in the Godwin and Anderton cases, that CPR 7.5 had not been complied with because the date of service achieved by the claimant (as deemed, i.e. fixed, by the CPR) was not within four months from the issue of the claim form, was reversed by the 2008 amendment to CPR 7.5, but only for claim forms served within the jurisdiction and not by changing the meaning or nature of a deemed date of service under the CPR. As the CPR now stand: for a claim form served within the jurisdiction, CPR 7.5(1) requires that the step there specified, for the method of service used by the claimant, as a result of the taking of which service will be effected two business days later (see CPR 6.14), must be taken within four months of the claim form being issued; for a claim form served outside the jurisdiction, CPR 7.5(2) requires that the claim form be served, i.e. (see Godwin and Anderton) 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 6.14; if it is overseas, so far as I can see – this was not explored in argument – there are no ‘deemed date’ rules in the CPR, so that when service occurs, if disputed, will fall to be determined on the facts of each case.)
  8. To my mind, therefore, the terms of CPR 7.5 as they now stand do not provide any reason for saying that the question of when, according to the CPR, a claim form is served, which will determine whether there has been compliance with a CPR 7.7 notice, is not governed by CPR 6.14 (if the claim form is served in the United Kingdom). Prior to the 2008 amendment of CPR 7.5, that which had to occur within four months (or six months as the case may be), to comply with CPR 7.5, was the same as that which had to occur within the period specified by a CPR 7.7 notice, to comply with that notice. But that was not because the content of CPR 7.7 was defined by or by reference to CPR 7.5; it was because the content of both Rules was defined by reference to when service occurs. That is still true for claim forms served outside the jurisdiction. For claim forms served within the jurisdiction, CPR 7.7 still has reference to when service occurs, but CPR 7.5 does not; the unsurprising consequence, for that case, is that what must happen by the deadline stated by the Rule, to comply with CPR 7.5, is not now the same as what must happen by the deadline set by the notice, for there to be compliance with a CPR 7.7 notice.
  9. I do not agree with the claimants that the purpose and effect of CPR 6.14 is to fix the date on which service is taken to have occurred, for the sole purpose of fixing, and thus assessing compliance with, subsequent deadlines defined by reference to when service took place. That is an important consequential effect. In most cases where the claim form has been served within the jurisdiction, it may be the only effect of CPR 6.14 that will matter, because the validity of that service is not defined by reference to CPR 6.14. But the purpose and effect of the CPR deemed date of service always was, and remains, to fix the date on which service of a document is taken to have occurred for the purpose of assessing compliance with any deadline for achieving that service. That CPR 7.5 no longer imposes such a deadline, in the case of claim forms served within the jurisdiction, has not changed that. Put more shortly, CPR 6.14 fixes the date on which service of a claim form occurs, for all, not only for some, CPR purposes.
  10. Mr Potts QC submitted that I should reach a different conclusion, namely that for a claim form served within the jurisdiction, compliance with a CPR 7.7 notice is to be tested by reference to whether by the deadline specified in the notice the applicable CPR 7.5(1) step has been completed. He cited Ageas (UK) Ltd v Kwik-Fit (GB) Ltd [2013] EWHC 3261 (QB), T&L Sugars Ltd v Tate & Lyle Industries [2014] EWHC 1066 (Comm), Heron Bros Ltd v Central Bedfordshire Council [2015] EWHC 604 (TCC), decisions respectively of Green J., Flaux J. (as he was then) and Edwards-Stuart J., and a decision of Master Matthews, DB UK Bank Ltd v Sinclair Solutions Ltd, Transcript 17 December 2015.
  11. Ageas (UK) Ltd (Green J.) and T&L Sugars (Flaux J.) each concerned the proper interpretation of a contractual time bar provision in a share purchase agreement providing that claims made by written notice within a set time limit (failing which they could not be made at all) would be deemed withdrawn. The requirement, to avoid the deemed withdrawal, was that legal proceedings be, in the case of Ageas (UK) Ltd, “commenced by validly issuing and serving legal process” within six months or, in the case of T&L Sugars, “commenced by being both issued and served” within twelve months. In both cases, it was held that legal proceedings had been served, within the meaning of the contractual term in question, when they were successfully delivered to the defendant’s solicitors (by fax and e-mail in Ageas (UK) Ltd, by hand in T&L Sugars). Since that occurred within the contractual time limit, the contract was satisfied and the claim was not deemed withdrawn, although for CPR purposes the date of service set by CPR 6.14 was after the contractual deadline had expired. Neither is a decision on the meaning and effect of CPR 7.7, but Mr Potts QC relied on the reasoning.
  12. As I have said above, CPR 6.14 creates a fixed rule as to when, for the purpose of the CPR, service of a claim form occurs; a fixed rule that operates independently of any enquiry into when the claim form was in fact received by or otherwise brought to the attention of the defendant; and a fixed rule that applies to all claim forms served anywhere within the United Kingdom, not just to those served within the jurisdiction. In Ageas (UK) Ltd, Green J. recognised at [55] that any dispute as to whether legal proceedings had been “validly” served for the purpose of the contractual provision before him would have to be determined by reference to the CPR. However, he rejected the submission that the question of when service had occurred, for the purpose of assessing compliance with the contractual deadline, was to be determined by reference to the CPR. CPR 6.14 was therefore irrelevant, although he saw its existence, and what he saw as tension between it and CPR 7.5(1), as support for his primary conclusion on the meaning of the contract. That conclusion (see [54]-[56]) was that legal proceedings were served, within the meaning of the contract he was considering, when they were delivered to and received by their intended recipient.
The judge reviewed the case law in detail.
  1. I therefore find that the cases cited by Mr Potts QC, none of which is a decision on CPR 7.7 in any event, do not cause me to change my analysis or conclusions to this point. To recap: Clyde & Co’s CPR 7.7 notice required the Claim Form to be served by 10 June 2016; that required the date of service set by CPR 6.14 to be 10 June 2016 latest; the ‘step required’ for the purpose of CPR 7.5(1) was completed on that date; the date of service set by CPR 6.14, therefore, was 14 June 2016.
  2. There was, therefore, a failure to comply with the CPR 7.7 notice, so that by CPR 7.7(3) I was entitled, on the defendants’ application, to dismiss the claim or make such other order as I thought just.
  3. I agreed with Mr Butcher QC that if the claimants were to be treated similarly to claimants who had failed to comply with CPR 7.5, then they would have been in real difficulty. For the reasons he gave, which I summarised at paragraph 10.iii) above, if the case had been one of non-compliance with CPR 7.5, I would have set service aside and not granted any retrospective extension of time; so if the claimants were to be treated in the same way, it would have been right to dismiss their claim as suggested by the defendants.
  4. However, I did not agree with the premise of that argument (paragraph 10.ii) above). CPR 7.7 neither says, nor in my judgment does it imply, that the temporal validity of a claim form is truncated by service of a notice. It is not necessary to hold that it has that consequence to give CPR 7.7 a clear and useful purpose, as submitted by Mr Potts QC (paragraph 11.ii) above). The function of CPR 7.7, as it seems to me, is to enable defendants to flush out early whether a claim that has been issued against them is going to be pursued and to get early sight of it, if it is. That does not involve or require putting the temporal validity of the claim form, that is to say the length of time within which the claimants’ invocation of the court’s jurisdiction will be valid, into defendants’ hands (through service of a CPR 7.7 notice). I do not read the express reference to dismissal of the claim in CPR 7.7(3) as indicating a presumption as to the result of non-compliance with a CPR 7.7 notice. In my judgment, it is there merely to make clear that non-compliance is to carry with it a power to dismiss in an appropriate case (and not only lesser, procedural, sanctions). An example would be where the defendant, on his application under CPR 7.7(3), persuades the court by evidence that the claimant has no real intention of pursuing the claim. The court could then, and would expect to, put the claim out of its misery by an order for dismissal even though ex hypothesi the claimant had not done so himself by discontinuing.
  5. In the light of Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203, [2008] 1 WLR 806, the defendants indicated in their acknowledgment of service an intention to contest jurisdiction and made their application under CPR 11 as well as CPR 7.7. In my judgment, that was unnecessary. The jurisdiction of the court to entertain the claimants’ claims on their merits was validly invoked by the service of the Claim Form, because CPR 7.5(1) was complied with by what happened on 10 June 2016, less than half way through the four-month period allowed thereby. No possible ground for applying under CPR 11 arose.
  6. To my mind, this was plainly not a case for dismissal under CPR 7.7(3) if I am right as to its purposes. My ruling in the defendants’ favour as to the meaning and effect of CPR 6.14 means that service did not occur by the deadline set by the CPR 7.7 notice. However, on the evidence: the claimants’ solicitors in good faith thought that completing the CPR 7.5(1) ‘step required’ on 10 June 2016 would comply with the notice; the Claim Form in fact duly came to the attention of fee earners at Clyde & Co with carriage of this matter for the defendants on the morning of 13 June 2016, the next working day; the purposes of CPR 7.7, as I have construed it, were as well satisfied, in truth, as if the date of service had been 10 June 2016. For example, that would have been the case if the Claim Form had been posted to Clyde & Co by first class post on 8 June 2016, in which case it would probably have arrived the next day, but quite possibly only on 10 June, or perhaps later still if the claimants were unlucky. The defendants received, as their CPR 7.7 notice demanded, early confirmation, less than half way through the period of validity of the Claim Form, that these claims are to be pursued; and had sight of such detail of the claim as they are entitled to at this stage. The failure to comply strictly with the deadline set by the CPR 7.7 notice meant at most only that the defendants received that confirmation, and those details, one or two working days later than they might otherwise have done. That has not caused and will not cause them any prejudice or difficulty whatever. Indeed, to be fair to the defendants, Mr Butcher QC was clear that the application for dismissal was really only pursued on the basis that the claimants’ position was to be assimilated to that of claimants who had failed to comply with CPR 7.5; but I decided that was not the correct approach.
  7. For the reasons set out above, (a) I concluded that the claimants had failed to comply with the CPR 7.7 notice served by the defendants, but (b) I rejected the application for a dismissal of the claim, and instead (c) I set a timetable for service of a Defence and Reply (if any).

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