ANOTHER CLAIM FORM CASE: PUTTING IN THE POST ON REQUISITE DATE IS GOOD SERVICE: NO SAFE HARBOUR FOR DEFENDANTS ON THIS ISSUE
Master McCloud has already made observations about the ” dry and unlovely crop of procedural service issues” that are regularly coming before the Masters. Another issue was considered in Jones v Chichester Harbour Conservancy & Ors  EWHC 2270.
“… the correct approach when determining whether, for the purpose of answering the question “was the claim form served during its period of validity?” is to ascertain whether the Claimant has carried out the step required by rule 7.5 within the time provided for doing so. That would apply equally to cases where time for service has been extended by order (as here) and to cases where the basic 4 or 6 month period of validity applies; “
- The date for service of the claim form is determined by the date of posting as set out in CPR 7.5.
- This principle continues to apply when service takes place after a court order has extended time.
The claimant had been rendered paraplegic in an accident. She brought an action against three defendants. Proceedings were issued and an extension of service obtained until the 17th January 2017. The claim form was sent by email to the First Defendant at 4.27 pm on the 17th January 2017. It was placed in the post first class and received by the first defendant on the 18th January 2017. The first defendant had not stated that it was willing to accept service by email.
THE ISSUE: GOOD SERVICE OR BAD SERVICE?
All the defendants in the action sought an order that service took place out of time. The sole issue was whether service of the claim form was valid.
THE MASTER’S DECISION
The Master considered the judgment in Brightside Group Ltd and others v RSM UK Audit LLP and others  EWHC 6 (Comm). However she held that it was of limited assistance. The Master held that the key date was the date that the claim form was placed in the post.
THE RELEVANT RULES
CPR 6.14 “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).”
CPR 7.5 “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 chosen, before 12.00 midnight on the calendar day four months after the issue of the claim form.
Method of Service Step required First class post, document exchange… Posting, leaving with, delivering to or collection by the relevant service provider”
CPR 7.6(1) “The Claimant may apply for an order extending the period for compliance with rule 7.5.”
THE MASTER’S JUDGMENT ON THIS ISSUE
(1) the correct approach when determining whether, for the purpose of answering the question “was the claim form served during its period of validity?” is to ascertain whether the Claimant has carried out the step required by rule 7.5 within the time provided for doing so. That would apply equally to cases where time for service has been extended by order (as here) and to cases where the basic 4 or 6 month period of validity applies; and
(2) as to the purpose of the ‘deemed date’ provisions in rule 6.14 those have to be given an interpretation which gives them a meaningful function and in my judgment 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.
Just as rule 7.5 is intended to assist the Claimant to avoid the trap of being deemed to be out of time, in my judgment rule 6.14 correspondingly assists the Defendant such that a reasonable assumption is made about how long, as a matter of fact, the claim form takes to arrive after posting and therefore represents a fair approach to the starting point for calculating time to respond. Otherwise the starting point would be that the time for service of a defence starts to run at the instant of posting of the claim form, which would be a strange approach since in the real world the Defendant cannot realistically be in receipt of the defence at that stage.
One point remains: the point was made, I think quite fairly, that the order of Master Fontaine did not say that the time under rule 7.5 was extended, rather it extended the time for ‘service’ of the claim form. In that sense taken literally the order might better have been expressed by reference to rule 7.5 but noting as I do that (a) the application before her was clearly under rule 7.5 and (b) that she was not making a decision based on any argument over whether the wording she adopted would be other than an order in line with the basis of the application, my judgment is that the proper interpretation of her order is that it was or was intended to be an extension of time for taking the necessary steps under rule 7.5. Such happens to be consistent, I note, with the judgment of Master Matthews in the Chancery Division in DB UK Bank Ltd in which he interpreted an order of Deputy Master Cousins granting ‘an extension of time for service of the claim form’ as being an extension of time for compliance with rule 7.5(1). That was an outcome described by Baker J in Brightside as ‘unsurprising’.
I was provided with submissions in writing by the parties as to the law on the approach which the court should take to the interpretation of a court order in terms of the extent to which the context is admissible. The point was made in submissions that the power remains to correct orders under the slip rule where they do not reflect the intention of the court, and that plainly the context is admissible for slip rule applications (which this is not). However this was said not to be a case for operation of the slip rule since that is limited to accidental slips or omissions. In particular the Defendants relied on Leo Pharma A/S & Leo Laboratories v Sandoz Limited  EWHC 1911 (Pat) in which Flaux J. observed that ‘matters deliberately included by the parties in an order drawn and sealed by the court do not constitute accidental slips or omissions within the rule.’ In so stating Flaux J. was taking into account previous case law and he noted at 17 that “It is common for the court to encourage parties to agree matters of detail in the drawing up of its order with the proviso that the parties may mention it again in the event of disagreement. Whilst in the circumstances it could be said that the court had no specific intention at the time it spoke its order, a subsequent agreement as to the form of order would plainly be within the intention of the court’.
It was said I should not readily look at context lying behind the making of an order other than where there is a slip rule application. I accept that, and it would be unhelpful if it became the norm to ‘go behind’ orders. However in this case the application itself was seeking the exercise of the court’s powers to extend time for compliance with rule 7.5 and (there not having been any argument before her as to making some decision other than either allowing the application or not) it is plain that the court’s intention in extending time for service was (very much as in Chancery Division in DB UK Bank Ltd) to extend time for compliance with rule 7.5.