ORDER GRANTING TIME TO EXTEND SERVICE SET ASIDE: THE DEEMED DATE FOR SERVICE OF THE CLAIM FORM: A BLAST FROM THE PAST: STILL APPLIES TO SERVICE ABROAD

January 28, 2019 · by · in Applications, Relief from sanctions, Service of the claim form, Serving documents

The judgment in Punjab National Bank (International) Ltd v Srinivasan & Ors [2019] EWHC 89 (Ch) contains two interesting lessons (i) a court can always set aside an order extending time for service of proceedings; (ii) the “old” rules relating to deemed date of service of proceedings still apply to proceedings served out of the jurisdiction.  The basic rules are: don’t  ever delay service of the claim form and be aware that an order extending time for service can be set aside.

“It seems to me that the claimant and its advisers lost sight of the need to take steps to serve the claim promptly. Their reliance upon CPR 7.6 was ill-founded.”

THE CASE

The claimants issued against individuals who were resident abroad.  The defendants applied to set aside orders giving permission to serve them abroad.   The defendants also applied to set aside an order extending time for service of proceedings. Chief Master Marsh set aside the orders on a number of grounds, here we look at two of them.  It was held that the order extending time should never have been granted. Further, in any event, the proceedings were not served on one of the defendants in time.  The rules relating to “deemed date of service” still apply when proceedings are served abroad.

THE JUDGMENT

Ground 6
    1. The Zaiwalla Defendants submit that the order granting an extension of time for service should not have been granted. The jurisprudence in relation to an application to extend the period for service under CPR 7.6 is well established following the decisions of the Court of Appeal in Hashtroodi v Hancock [2004] 3 All ER 530, Collier v Williams [2006] 1 WLR 1945 and Hoddinott v Persimmon Homes [2007] EWCA Civ 1203. A convenient summary of the principles can be found in the judgment of Tugendhat J in Hallam Estates Ltd v Baker [2012] EWHC 1046 (QB) at [12]. The principle that is of immediate application is that the court should normally only exercise its power to extend the period of service where the extension is needed due to issues relating to service. Where, for example, the claimant has taken timely steps to serve the claim but has been thwarted by events beyond its control the court will normally grant an extension. Delays in the process of effecting service under the Hague Convention are a common, and usually a good, reason for granting an extension.
    2. In this case, the claimant took no steps to serve the 2nd to 9th defendants until after obtaining permission to serve the 1st defendant. There was nothing to inhibit service on the 2nd to 9th defendants from grant of the order on 13 September 2017. It was the claimant’s choice to join Mr Srinivasan to this claim, rather than issue a fresh claim against him, and its choice to undertake an extensive amendment to the claim. I would add that the process of completing the claim took a surprisingly long time in light of Cubism Law’s unequivocal assertions about the claim in the letters of claim sent in 2016.
    3. It seems to me that the claimant and its advisers lost sight of the need to take steps to serve the claim promptly. Their reliance upon CPR 7.6 was ill-founded.
Ground 7
    1. The order made by the Deputy Master granted an extension of time for service of the claim form and particulars of claim until 12 February 2018. I do not consider there is any doubt that the order relates to both documents in their amended form. The difficulty for the claimant is that the order, as drafted by the claimant, contains a deemed service provision in the following terms:
“5. The claim form and particulars of claim shall be deemed served on the second business day after the sending of the email, pursuant to CPR Rules 6.14 and 7.5(1).”
  1. The regime for service of claims within the jurisdiction was changed in 2008 and 2011. However, the rule change does not affect service of a claim form out of the jurisdiction. The hearing before Deputy Master Bartlett gave permission to serve the first defendant out of the jurisdiction and a limited extension of time for service of the claim up to 12 February 2018. The claimant wished to make some final adjustments to the claim and the Deputy Master wished to see the version of the particulars of claim that was to be served. In fact, even at this very late stage the claimant undertook what was described by Cubism Law as a substantial re-shaping of the claim. It was sent to the court on 8 February 2018, some three weeks after the hearing, and the following day a draft order was supplied. They were reviewed promptly by the Deputy Master and the order was sealed the same day. Cubism Law sent the claim form and the particulars of claim to the defendants by email that afternoon. However, they did not send the appendixes which were not sent until the following Monday 12 February 2018. The appendixes were an essential element of the claim and service was not effected until they were supplied. By virtue of the deeming provision in the order, service was deemed to be effected the following day, 13 February 2018 and thus outside the extended period.
  2. The Zaiwalla Defendants rely on the decision of the Court of Appeal in Anderton v Clwyd CC (No2) [2002] 1 WLR 3174 where the court held that a deemed service provision created a non-rebuttable presumption that service took place on the deemed date. That decision remains good authority in relation to the CPR as it relates to service out of the jurisdiction and is binding on me.
  3. Ms Perry QC who appeared for the claimant made an oral application for relief from sanctions in the course of her submissions. She submitted that the point had only been taken by the defendants in September 2018 and the court should take the view that such a technical failure to comply with the order should be relieved. As it turned out service was doomed to fail from 9 February 2018 in light of the terms of the order. She submitted that had the court been asked at the time for a short additional extension of time, it would have been granted.
  4. I do not accept that this is a suitable case in which to relieve the claimant from the effect of the order it sought. Although a formal application may not be required in every case, it seems to me in this case such an application was required to give the court an opportunity to consider the claimant’s case on the application of the well-known Mitchell and Denton principles. But in any event, such an application is without merit in light of the catalogue of procedural failings on the part of the claimant.
Tags: , , , , , ,