CLAIMANT LAWYERS: YOU MUST KNOW THE RULES RELATING TO SERVICE OF THE CLAIM FORM: YOU CAN’T EXPECT THE DEFENDANT TO HELP YOU OUT

One guarantee for anyone writing about civil procedure is that there will be a regular supply of what Master McCloud has described as ” a dry and unlovely crop of procedural service issues”,  The Court of Appeal decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 shows the importance of every litigator knowing and being fully aware of the rules relating to service of the claim form. This is something that is as is important as knowing the law as to limitation.

KEY POINTS

• The court would not make an order assisting the claimants when they had waited until the end of the period of service of the claim form and then mistakenly served on solicitors who had not been nominated to accept service or indicated they would accept services.
• If, as a claimant, you leave the issue of service until very late in the day there is a strong possibility you will make errors. The court is unlikely to be sympathetic.
• Both claimants and defendants must know the rules about appropriate service in some detail (it is not difficult for a defendant lawyer to make an error which prevents their client being able to take a point as to late or incorrect service),

THE CASE

The claimant’s solicitors  served a claim form (within time) on solicitors who were not nominated to accept service.

The Master exercised his discretion under CPR 6.15 on the grounds that the defendant should have pointed out the error to the claimant’s solicitors.   The case is considered in detail here. 

On appeal to the High Court judge the Master’s decision was overturned.   The action stood struck out.

THE CLAIMANTS, UNSUCCESSFUL APPEAL TO THE COURT OF APPEAL

The claimants’ appeal to the Court of Appeal was equally unsuccessful.  The claimant argued that the claim form had been served on the defendant’s solicitor shortly before the time for expiry of the claim form.  The defendant did not take the point on incorrect service until after the claim form had expired.  This argument was given short shrift in the Court of Appeal,

THIS WAS NOT TECHNICAL GAME PLAYING

1. I also consider that the Judge was right to decide that the Master had been wrong to decide that there was technical game playing in this case. The only relevant difference between the facts of the present case in relation to the conduct of those in receipt of the defective service and those in Barton is that in this case, it is clear from the facts that Mr Dawson-Gerrard, of M&R, quite properly considered the authorities, advised his client and took their instructions, whereas in Barton it was only clear that the claimant had received an automatic reply with a number to contact if the case was urgent. There was no evidence that Berrymans appreciated that service was irregular prior to the deadline (although Floyd LJ was prepared to assume that this was the case in the Court of Appeal at para 49), and Berrymans had not met with its clients to seek instructions. I cannot see that this makes any difference, particularly in the light of what Lord Sumption said at para 22 of his judgment about the likely course of events. It is hard to see that taking the point that service was invalid, as in Barton, together with acting in a proper professional manner in researching the position, advising the client and taking their instructions can be recast as “technical games.” The position is entirely different from that in Abela where the defendant had deliberately obstructed service.

2. As the conduct of M&R, or Phoenix, cannot be characterised as a breach of a CPR r 1.3 duty to warn CB of the defect in service and/or technical game playing, it follows that there is nothing in Mr Berkley’s submission that M&R, or Phoenix, ran the risk of their conduct being characterised as such in these proceedings.

IT WAS THE CLAIMANTS THAT TOOK A MAJOR RISK

The claimants had waited until the end of the limitation period before issuing.   They then sent the claim form to the defendant’s solicitors shortly before the end of the four month period for service. They failed to consider, or to check,  whether the defendant’s solicitors had stated that they would accept service.

This ground of appeal was not pursued with any vigour, if at all, before us. In fact, Mr Berkley merely commented that it was not open to the Judge to go behind the Master’s finding that on the facts the delay was “wholly reasonable” in the absence of a challenge on the basis of perversity. In fact, the Judge dealt with this matter at paras 43 and 44 of his judgment and decided that it was indeed open to the defendant/Phoenix to challenge the Master’s finding as to reasonableness. There is no appeal against that decision. Furthermore, the manner in which the Judge dealt with whether the Appellants courted disaster by waiting until the end of the limitation period to serve the proceedings is consistent with the approach endorsed by Lord Sumption at para 23 of his judgment in Barton