ANOTHER FAILED CLAIM FORM SERVICE CASE: SERVICE ON SOLICITORS NOT NOMINATED WAS INVALID: SERVICE BY EMAIL ALSO INVALID

The judgment of Mr Justice Nicklin today in Piepenbrock v Associated Newspapers Ltd & Ors  [2020] EWHC 1708is (yet) another action that failed because of incorrect service of the claim form.

This is another case about the problems that can arise when a claimant leaves service of a Claim Form until the last moment. A litigant who does so “courts disaster” (Lord Sumption in Barton -v- Wright Hassall LLP [2018] 1 WLR 1119 [23]).”

THE CASE

The claimant issued proceedings for defamation.  A claim form was issued but not served immediately.  On the 10th February 2020 there was an attempt, by the claimant’s wife,  to serve the claim forms, by email, on solicitors who had written on behalf of the defendants.  Neither firm of solicitors had stated that they would accept service, nor had the solicitors been nominated to accept service.

 

  1. In response to the purported service of the Claim Form and Particulars of Claim, ACK Media Law wrote to the Claimant on 13 February 2020 contending that the Claim Form had not been validly served. For their part, by email on 13 February 2020, Pinsent Masons informed the Claimant and his wife that they had not sought confirmation that the firm was instructed to accept service of the Claim Form and that the purported service upon them was not valid.
  2. The Claimant’s immediate response to the Defendants’ contention that service had been invalid was to re-send the Claim Form and Particulars of Claim by post to the Defendants, but it is common ground that, by this stage, the Claim Form was no longer valid.
  3. On 24 February 2020, ACK Media Law and Pinsent Masons filed Acknowledgements of Service on behalf of the Defendants indicating an intention to contest the jurisdiction of the Court on the basis, explained in the accompanying correspondence, that the Claim Form had not been validly served during its period of validity.

 

SERVICE HAD NOT BEEN VALID

The judge found that service had not been valid.

Has the Claim Form in this case been validly served on the Defendants?

    1. The answer is no.
i) Service upon the solicitors was not permitted and was ineffective for two reasons:
a) First, the requirements of CPR 6.7 were not met. None of the Defendants had provided the solicitor’s address as an address at which the Claim Form could be served, and the solicitors had not stated that they were instructed by the relevant defendant to accept service of the Claim Form.
b) Second, and in any event, the solicitors themselves had not previously indicated in writing that they were willing to accept service by email, as required by Practice Direction 6A §4.1.
ii) Service on the defendants, by email, was not permitted and was ineffective because none of the defendants had previously indicated in writing a willingness to accept service by email, as required by Practice Direction 6A §4.1.
  1. In his submissions, the Claimant placed emphasis on the fact that he had been told by both firms of solicitors that he should correspond with them, rather than their clients. That may be so, but it does not alter the requirements for valid service of a Claim Form that I have set out, and which the Claimant did not observe. The Claimant told me, at the hearing, that he and his wife had obtained and read the provisions of the CPR relating to service of the Claim Form. Although I do have sympathy for those who have to navigate the Civil Procedure Rules without any legal training, I consider that the relevant part of Practice Direction 6A, which governs service by email, and to which express reference is made in CPR 6.3, is perfectly clear. It may be that, in the haste to serve the Claim Form at the end of its period of validity, the Claimant and his wife missed (or failed to appreciate the effect of) this important provision.

SHOULD THE COURT GRANT THE CLAIMANT AN EXTENSION OF TIME FOR SERVING THE CLAIM FORM

The judge refused the claimant’s application under CPR 7.6 for a retrospective extension of time.

  1. I accept the Defendants’ submissions and I refuse the Claimant’s application under CPR 7.6(3) for a retrospective extension of time to serve the Claim Form. The Claimant has failed to demonstrate that he took all reasonable steps to serve the Claim form in the period of its validity. There were no earlier attempts to serve the Claim Form before the attempt to serve it by email on 10 February 2020. The argument that the Defendants could be assured that the Claim Form was going to be served on 10 February 2020 is unrealistic. A defendant cannot sensibly be expected to work on the basis that a claimant who has issued a Claim Form is bound ultimately to serve it. Sometimes, and for a variety of reasons, claimants do not progress their claims beyond issuing a Claim Form. As recognised in Sodastream, a defendant is entitled to sit back and wait to see whether the Claim Form is actually served.[1] The fact that a defendant has been given notice of a claim, and may even be expecting service of the Claim Form, does not lessen the obligation on a claimant to serve it in accordance with the rules.
  2. To the extent that it is necessary to consider whether the Claimant has a “good reason” for not having attempted service before 10 February 2020, judged objectively, the reasons advanced by the Claimant do not amount to a “good reason”, either individually or collectively. Whilst I accept that the Claimant has also had to deal with a claim in the Employment Tribunal, including preparing for two hearings, that cannot amount to a good reason for not serving the Claim Form in this case. I do not accept that the burdens of preparing for the Employment Tribunal were so great that they prevented service of the Claim Form. The Claimant could have served the Claim Form at any time after it was issued. If he was not ready to serve Particulars of Claim, and if the 14 days provided under CPR 7.4(1)(b) was insufficient, he could have sought to agree an extension of time with the Defendants or made an application to the Court for further time to serve the Particulars of Claim (see [42(v)] above). The Claimant’s Claim Form indicated that the Particulars of Claim were “to follow” indicating that, at least when the Claim Form was issued, that was his intention. CPR 16.4(1) requires Particulars of Claim to contain a “concise statement of the facts upon which the claimant relies“. Particulars of Claim in defamation claims rarely need to be long documents and precedents are available (including in the leading textbook, Gatley). Whatever can be said of the 300-page document served by the Claimant, it is not concise. To the extent that the Claimant used up the four-month period preparing it, objectively judged, it was not time spent wisely, but more importantly, it does not provide a good reason for not serving the Claim Form.
  3. The First Defendant’s solicitors have come under sustained criticism from the Claimant, most of which has been unwarranted. The Claimant did not even respond to the offer of a standstill agreement in ACK Media Law’s letter of 10 October 2019. The Claimant told me at the hearing that he did not know what a standstill agreement was. He said he had taken advice from what he described as the “claimant community”, the effect of which was that he should not trust solicitors who acted for defendants. He also said that there had been no similar offer of a standstill agreement from Pinsent Masons.
  4. That explanation is difficult to understand. The Claimant and his wife are highly educated. The standstill agreement was written in plain terms. It offered to suspend the operation of the limitation period for a maximum of four months, terminable on 28 days’ notice. It was a sensible and pragmatic – even generous – response to presentation of a defamation claim right at the end of the limitation period. ACK Media Law did everything that was required of them on behalf of the First Defendant following receipt of the detailed letter of claim from the Claimant. The offer of a standstill agreement was not some trick or device, and it was perhaps unwise of the Claimant to follow advice to treat it as such. The fact that Pinsent Masons had not put forward a similar agreement might have had some force if the Claimant had actually inquired whether they were prepared to offer one. But he did not. In fact, the Claimant simply ignored the correspondence he received from the Defendants’ solicitors and adopted an approach of non-engagement. With hindsight, that was very unwise. A more constructive approach might have avoided the position in which the Claimant now finds himself.
  5. In the light of my conclusion that the Claimant has not satisfied CPR 7.6(3)(b), it is not necessary to consider whether the Claimant acted promptly in making the application under CPR 7.6(3)(c). The Claimant’s application for an extension of time to serve the Claim Form is refused.

THE CLAIMANT’S APPLICATION UNDER CPR 6.15

The judge also refused the claimant’s application under CPR 6.15. which allows service by claim form or by an alternative method.

  1. I accept the Claimant’s submission that the Defendants did, in fact, receive notification of the Claimant’s claim against them during the validity of the Claim Form as a result of the combination of the previous correspondence that had been sent and the sending of the Claim Form and Particulars of Claim by email. But that fact, alone, is not sufficient to justify an order under CPR 6.15(2). The prejudice to the Defendants by making an order under CPR 6.15(2) would be significant. They would be deprived of a limitation defence. The principles that apply to applications under CPR 7.6 on this point (see [42(vi)] above) are equally applicable to applications under CPR 6.15(2).
  2. Although I sympathise with the Claimant that the consequences for him of the error of not validly serving the Claim Form will be serious, there is nothing that really separates his case from many others who have made similar mistakes when attempting to serve a Claim Form. His circumstances are very close to Mr Barton’s. Often when something goes wrong, there is a tendency nowadays to look around for someone else to blame. I am afraid, in this case, the responsibility for the failure validly to serve the Claim Form rests solely with the Claimant’s side. I refuse the Claimant’s application for an order under CPR 6.15(2).

THE CLAIMANT’S APPLICATION UNDER CPR 6.16

The application to dispense with service of the claim form was also dismissed, as was the application under CPR 3.10.  The claim form was not served in its validity and the court had no jurisdiction.