SERVICE OF UNSEALED AMENDED CLAIM FORMS DID NOT CONSTITUTE GOOD SERVICE: ALL OF THE CLAIMANTS’ ATTEMPT TO REMEDY THE SITUATION COME TO GRIEF: THE CLAIMANTS’ CARDS WERE MARKED

In November I wrote that there had been a lull in reported cases relating to service of the claim form. As predicted that lull did not last long. In Ideal Shopping Direct Ltd & Ors v Visa Europe Ltd & Ors [2020] EWHC 3399 (Ch) Mr Justice Morgan found that the claimants’ service of unsealed amended claim forms on the defendants did not constitute good service of the claim form. Further  the judge rejected every one of the claimants’ application for relief. It is another example of the dangers of leaving service of the claim form to (and beyond) the last minute.

 

“I now need to stand back and ask: is there a good reason to treat the service of an unsealed claim form as good service? My conclusion is that there is not a good reason to do so. The reason why the Claimants are in this position is the mistake made by their solicitors. That is not a good reason for making an order under rule 6.15. I consider it to be a bad reason for the suggestion that I should make such an order.”

SERVICE OF THE CLAIM FORM: FORTHCOMING WEBINAR

There are innumerable reports on this blog about the problems relating to service of the claim form.  I am presenting a webinar on the 11th February 2021 “Service of the Claim Form and Particulars of Claim” which deals with service issues.

 

  • Why do things go wrong so often in relation to service of the claim form
  • “The address for service” – problem areas
  • When must you serve on a solicitor?
  • Identifying problems with service and heading them off
  • What can you do if things go wrong with service?

 

Booking details are available here.

THE CASE

The claimants issued proceedings.  Copies of the issued claim forms were sent to the defendant “for information, and not by way of service”.  Extensions of time for service were agreed, service should have taken place by 17th July 2020.   Before the 17th July 2020 the claimants served unsealed amended claim forms on the defendants. (The original sealed claim forms, it seems, stayed in the claimants’ solicitors offices).

“SERVICE” OF THE UNSEALED AMENDED CLAIM FORMS

The claimants’ solicitor “served” copies of amended claim forms at a time when these had not been sealed by the court.

  1. The sealed original claim form is a claim form in proper form and bearing claim number HC-2017-001410. It also bears the court seal with the date 15 May 2017. The unsealed amended claim form is a claim form in Form N1. It contains the text: “Amended Claim Form under CPR rule 17.1 dated 17 July 2020”. It does not show the original wording struck out and as amended but sets out the details of the claim in a way which is not identical to that in the sealed original claim form. The unsealed amended claim form bears the claim number as before. It does not have any seal nor even a photocopy of the seal from the sealed original claim form. The sealed amended claim form is the same as the unsealed version of the document save that it has a court seal with the date 17 July 2020.
  2. Some time after 17 July 2020, the solicitors for Visa and Mastercard took the point that the sending of the unsealed amended claim forms did not constitute good service. On 24 July 2020 (in the case of the Mastercard claims) and on 29 July 2020 (in the case of the Visa claims) Scott+Scott served the sealed amended claim forms on the relevant Defendants’ solicitors. There ensued correspondence between the parties and various applications were made to the court.

THE DEFENDANTS’ APPLICATIONS

The defendants applied for for orders that the claimants had not served the claim forms in time and the court did not have jurisdiction.

The judge reviewed the Rules and Practice Directions relating to service of the claim form in detail. He held that the service of the amended claim forms in this case did not constitute good service.

  1. I explained earlier that Ms Hollway believed that if she had filed the amended claim form pursuant to PD51O, then she was in a position to serve it as a claim form even before it was sealed. It may be that Ms Hollway’s belief was in accordance with, or similar to, the submission made by Ms Smith as to the operation of PD51O. However, I consider that Ms Hollway’s belief and Ms Smith’s submission are not well founded. A draft claim form without a court seal is not a claim form even if it is subsequently sealed and even if the sealing and issue is retrospective to the date of filing under PD51O. Until the claimant’s solicitor is in possession of a claim form bearing a court seal, they do not have a claim form capable of being served.
  2. Ms Smith’s principal argument was that where there existed an original claim form which had been issued and sealed, it was possible to amend the claim form so that the amended claim form did not need to be sealed. I have earlier referred to Rule 17.1 which allows a claimant, without needing permission, to amend a claim form before it is served. Further, Rule 19.4(1) allows the removal, addition or substitution of a party, without needing permission, before the claim form is served. Ms Smith submits that these rules say nothing about the need for a court seal to be placed on the amended document before it can be regarded as a claim form and therefore before it can be served as such.
  3. This is not a case where a claimant has taken an original sealed claim form and made amendments to that document, possibly in manuscript, and added words to indicate that it had been amended pursuant to rule 17.1 and endorsed it with a fresh statement of truth. If a claimant did create such a document and served it there might be room for argument as to whether that document was a claim form in an amended form: see Cant v Hertz Corporation [2015] EWHC 2617 (Ch). It could be observed that that method of proceeding did not accord with the note in paragraph 17.1.2 of Civil Procedure which states that an amended claim form should be filed and served. If it were filed, it would be sealed by the court.
  4. In this case, the form of the document which has been referred to as the amended claim form is a document prepared by the solicitors for the purpose of filing under PD51O and which does not bear a court seal. I do not see how, consistently with the general rule, such a document can be regarded as a claim form. I do not find anything in rule 17.1 or rule 19.4(1) which displaces the general rule. It may not matter but I note that Ms Hollway does not say that she believed that such a document was a claim form. Instead, she believed that such a document had to be filed with the court first before it could be served. If Ms Smith’s submission in relation to amending a claim were correct, then it would not have been necessary to file the document under PD51O before it could be served.
  5. Ms Smith made the general point that Electronic Working was compulsory in this case and in many other cases. If, in such cases, a claimant would not be in a position to serve a claim form until the document as filed is Accepted, issued and sealed, this might be some time after that document is filed. Thus, the use of Electronic Working might postpone the date at which a claim form can be served as compared with the alternative of a solicitor attending the court office and immediately receiving a sealed claim form. Ms Smith is right about the gap between filing and sealing. Electronic Working differs in a number of ways from the alternative of a solicitor attending the court office and receiving a sealed claim form. However, there are obvious respects in which Electronic Working is superior to that alternative. A document may be filed 24 hours a day, on any day of the year, and when the document is Accepted, the date of issue will be the date of filing.
  6. Accordingly, I hold that the documents served by the Claimants on 17 July 2020 were not claim forms and, accordingly, no claim form was served on the Defendants within the time permitted by rule 7.5 as extended by agreement to 17 July 2020.

THE CLAIMANTS’  UNSUCCESSFUL APPLICATIONS

The judge then considered the Claimants’ applications in response.

    1. I now need to consider the Claimants’ applications under rules 6.15, 6.16 and 3.10. The Claimants did not pursue an application under rule 3.9.
    2. To place the Claimants’ applications in context, it is helpful to consider rule 7.6 although the Claimants do not make any application under that rule. A claimant can apply for an extension of time for service of a claim form under rule 7.6 either before the time for service expires or even after it has expired. If a claimant applies after the time for service has expired, the claimant must show that it has taken all reasonable steps to comply with rule 7.5 but has been unable to do so and he has acted promptly in making the application.
    3. It is perhaps implicit in the Claimants’ non-application under rule 7.6 that they recognise that they could not show that they had taken all reasonable steps to comply with rule 7.5 or that they had been unable to comply. If they had applied under rule 7.6, no doubt the Defendants would have submitted that there had been a considerable time between the issue of the original claim form and 17 July 2020. Although it had been reasonable, and in the interests of both sides, to wait until the decision of the Supreme Court on 17 June 2020, there was still ample time between 17 June 2020 and 17 July 2020 to serve a claim form. It could be said that the Claimants could have served the original claim form without any difficulty, particularly where the Defendants’ solicitors had agreed to accept service and, further, had agreed to service by email. Again, if the Claimants had wanted to amend the original claim form before service they had time in which to do so. They could have filed the amended claim forms by way of Electronic Working without leaving it to the last day, and in some of the cases to the afternoon of the last day, when it must have been obvious that the sealed amended claim forms would not have been available for service before midnight on the last day.
The applications under rule 6.15
    1. I have set out the wording of rule 6.15 earlier in this judgment. It is accepted that rule 6.15 is, in principle, available to be relied on by a claimant even where the claimant would not be able to succeed under rule 7.6. Rule 6.15 turns on different considerations, at least to some extent, from those relevant to rule 7.6.
    2. Rule 6.15(1) allows the court to permit service by a method which is not otherwise permitted by CPR Part 6. In this case, the method of service used (as distinct from the thing which was served) was permitted by CPR Part 6. Further, the method of service used could not have been more convenient, namely, service on the Defendants’ solicitors by email. The Claimants do not ask for an alternative method of service which is more convenient than that. What the Claimants seek is not a change in the method of service but a change in the thing which has to be served. Rule 6.15(1) also allows the court to permit service at an alternative place but that is not relevant in this case. The Claimants rely more on rule 6.15(2) than on rule 6.15(1). However, rule 6.15(2) only applies to “an application under this rule” and that is an application which asks the court to permit service by an alternative method or at an alternative place. Further, the thing which has to be served would appear to be the claim form and not something else.
    3. Mr Hoskins QC for Mastercard submitted that rule 6.15(2) did not apply in this case because the court is not able under this rule to permit service of something which is not a claim form and then to say that there has been service of a claim form. There is considerable force in that submission. If it were right, that would be the end of the application under rule 6.15.
    4. However, I will approach rule 6.15 on the somewhat liberal assumption that Mr Hoskins’ submission is not a complete answer and on the basis that the court could use this rule to say that service of an unsealed amended claim form was a step taken to bring the sealed amended claim form to the attention of the Defendants by an alternative method to serving a sealed amended claim form. Rule 6.15 only applies where there is “good reason” for the court to exercise the power conferred by the rule.
    5. In connection with rule 6.15, I was referred to Abela v Baadarani [2013] 1 WLR 2043 and Barton v Wright Hassall LLP [2018] 1 WLR 1119. Both Abela and Barton were cases where the claimant was asking the court to permit service of a sealed claim form by an alternative method. In Abela the claimant succeeded and in Barton the claimant failed.
    6. In Abela, the principal judgment was that of Lord Clarke with whom the other members of the Supreme Court agreed; Lord Sumption added a short judgment of his own. I can take the decision in Abela relatively shortly as it was fully considered in Barton. In Abela, Lord Clarke stressed that the test to be satisfied for the application of rule 6.15 is whether there is “good reason” to make an order under this rule. Whether there is a good reason is essentially a matter of fact: see at [33]. On an application under rule 6.15, a court need not spend undue time analysing the decisions in other cases which turned on their own facts: see at [35]. The mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason but it is a critical factor: see at [36]. The most important purpose of service is to ensure that the contents of the claim form are communicated to the defendant: see at [37]. The relevant focus is upon the reason why the claim form cannot or could not be served within the period of its validity: see at [48].
    7. In Barton, a litigant in person had served the defendant with a sealed claim form by email believing that to be good service. It was not good service. He was thereafter out of time to serve the claim form and a new claim would be statute barred. He applied for an order under rule 6.15 that service by email should be treated as good service. A majority of the Supreme Court declined to make such an order. Lord Sumption (with whom Lord Wilson and Lord Carnwath agreed) represented the majority view and Lord Briggs (with whom Lady Hale agreed) were in the minority.
    8. At [8], Lord Sumption explained that the rules as to service did not impose a duty, coupled with a sanction, on a litigant. Instead, those rules imposed conditions to be satisfied so that the defendant was made subject to the jurisdiction of the court. At [9], Lord Sumption adopted the general approach in Abela. At [10], it was said:
“In the generality of cases, the main relevant factors are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules and (ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired, and, I would add, (iii) what if any prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances.”
    1. At [15], Lord Sumption said that the lower courts had not erred in principle and had been entitled to reach the conclusion that there was not a good reason for the court to make an order under rule 6.15.
    2. At [16], Lord Sumption discussed the significance of the fact that the defendant was aware of the contents of the claim form within the time for service of it. He said that that fact was a necessary condition but not a sufficient one for an order under rule 6.15. He added that it had never been enough that the defendant was aware of the contents of a claim form; otherwise, any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving a claim form.
    3. At [21] and [23], Lord Sumption said:
“21.  Like the Court of Appeal, I would readily accept [counsel’s] submission that the claimant need not necessarily demonstrate that there was no way in which he could have effected service according to the rules within the period of validity of the claim form. The Court of Appeal rejected this suggestion in Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898. That, however, was a case in which the problem was that the court itself had failed to effect proper service because of an administrative error. The submission that the Court of Appeal rejected was that this did not justify relief under CPR r 6.15 because it had been open to the claimant’s solicitor to effect personal service. However, I agree with the general point that it is not necessarily a condition of success in an application for retrospective validation that the claimant should have left no stone unturned. It is enough that he has taken such steps as are reasonable in the circumstances to serve the claim form within its period of validity. But in the present case there was no problem about service. The problem was that Mr Barton made no attempt to serve in accordance with the rules. All that he did was employ a mode of service which he should have appreciated was not in accordance with the rules. I note in passing that if Mr Barton had made no attempt whatever to serve the claim form, but simply allowed it to expire, an application to extend its life under CPR r 7.6(3) would have failed because it could not have been said that he had “taken all reasonable steps to comply with rule 7.5 but has been unable to do so.” It is not easy to see why the result should be any different when he made no attempt to serve it by any method permitted by the rules.
23.  Naturally, none of this would have mattered if Mr Barton had allowed himself time to rectify any mishap. But having issued the claim form at the very end of the limitation period and opted not to have it served by the court, he then made no attempt to serve it himself until the very end of its period of validity. A person who courts disaster in this way can have only a very limited claim on the court’s indulgence in an application under CPR r 6.15(2) . By comparison, the prejudice to Wright Hassall is palpable. They will retrospectively be deprived of an accrued limitation defence if service is validated. If Mr Barton had been more diligent, or Berrymans had been in any way responsible for his difficulty, this might not have counted for much. As it is, there is no reason why Mr Barton should be absolved from his errors at Wright Hassall’s expense.”
    1. The minority in Barton approached the matter very differently. I refer in particular to Lord Briggs’s judgment at [32] and [40]. That approach would have been much more helpful to the Claimants in the present case but those views in a dissenting judgment cannot, of course, be taken as a statement of the correct legal principles in relation to rule 6.15.
    2. In the present case, I have to ask whether there is good reason for the court to make the order sought by the Claimants under rule 6.15. I will begin by approaching the matter in the way which Lord Sumption said, at [10], should apply to the generality of cases.
    3. In that way, the first question is whether the claimant has taken reasonable steps to effect service in accordance with the rules. In this case, the Claimants did not take steps to effect service in accordance with the rules. The step which they took, sending an unsealed amended claim form to the Defendants’ solicitors was not in accordance with the rules. It would have been straightforward for the Claimants to have served the original claim forms, or the amended claim forms, in accordance with the rules. As to the original claim forms, Ms Hollway confirmed that Scott+Scott had retained those forms and she herself volunteered in her evidence that service of the original claim forms would have been a “simple expedient”. Further, there ought not to have been any difficulty in obtaining sealed amended claim forms in time for them to be served by midnight on 17 July 2020. Ms Hollway did not give any evidence to demonstrate that the steps which Scott+Scott were taking on 17 July 2020 could not have been done earlier. Her evidence was that her firm’s experience had been that it could take anything from one hour to one business day, or more, for the court to provide a sealed document via Electronic Working. In the light of that experience, it was not reasonable for her to leave the filing of the amended claim forms until the last day for service. Further, Ms Hollway explained that if she had understood what had to be done in terms of service, she could have contacted the court to ask them to expedite the sealing of the amended claim forms. In addition, in one case, Scott+Scott did have the sealed amended claim form at 15.52 on 17 July 2020 and they chose not to serve it, having already sent the unsealed amended claim form to the Defendants’ solicitors. The reason that things went wrong in this case was that Ms Hollway had formed the belief that it was sufficient for her to file the amended claim form by Electronic Working and then to send the unsealed amended claim form by email to the Defendants’ solicitors. That was not a reasonable belief. Ms Hollway did not suggest that her belief was based on any textbook or guidance as to the operation of Electronic Working. Her belief did not make the steps which she took “reasonable steps” to effect service in accordance with the rules.
    4. The second question is whether the Defendants or their solicitors were aware of the contents of the claim form at the time when it expired. The Defendants’ solicitors were aware of the contents of the original claim forms as they had been sent to them for information. They were aware that the claim forms had been issued and they knew the nature of the claim being made. They knew the claim numbers. As to the amended claim forms, they were aware of their contents from the unsealed copies which were emailed to them. There was an issue as to whether the Defendants’ solicitors would have known on 17 July 2020 that the Claimants had filed the amended claim forms. Ms Hollway suggested that the covering emails which contained the sentence, “Please note, we do not yet have sealed copies of the documents, but will send these as soon as possible”, would have informed the Defendants’ solicitors that the Claimants had filed the amended claim forms. I do not think that that is right. The sentence in the email states that Scott+Scott do not have sealed copies of the documents. The reference to “not yet” deals with the time at which they do not have sealed copies of the documents. The sentence does not convey to me any information as to why Scott+Scott do not have sealed copies. One is left to speculate: is it because they have not yet applied for sealed copies or is it because they have filed the amended claim forms and are waiting for the court to issue and seal them?
    5. The Defendants argued that because their solicitors would not know if the amended claim forms had been filed, they could not know if the amended claim forms would be issued before the end of 17 July 2020. That may be so. Nonetheless, I would be prepared to hold, in answer to the second question posed in Barton at [10], that in this case the Defendants’ solicitors were aware of “the contents of the claim form” by the end of 17 July 2020. As explained in Barton at [16], such knowledge is a necessary but not a sufficient condition for an order under rule 6.15.
    6. The third question is: what if any prejudice would the Defendants suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what the Defendants knew about its contents. The prejudice referred to is the prejudice which would flow from the court making an order under rule 6.15. In this way, the comparison is between the position of the Defendants if no order is made with their position if an order were made. This is a different question from asking: what prejudice did the Defendants suffer by reason of the Claimants, on 17 July 2020, emailing unsealed amended claim forms as compared with what should have happened, which was that the Claimants ought to have served sealed claim forms?
    7. The Defendants say that they will suffer prejudice if the court makes an order in favour of the Claimants under rule 6.15. In the absence of an order, these proceedings are now at an end. In the Mastercard cases, the Claimants were able to issue new claim forms and they have done so on 19 and 20 August 2020. In the Visa cases, there is an issue as to whether the Claimants are able to issue new claim forms; I will discuss that issue later in this judgment.
    8. If the Claimants issue new claim forms, then they will be able to claim for damage occurring in the six years before the date of issue of the new claim forms. If an order is made in their favour under rule 6.15, then they will be able to claim for damage occurring in the six years before the issue of the original claim forms. Accordingly, in the absence of an order under rule 6.15, the Defendants have a limitation defence as regards a period of time. The length of that period varies from case to case but the point applies in all of these cases. This means that the Defendants will be prejudiced by an order in favour of the Claimants under rule 6.15. Ms Smith submitted that although the Defendants will be deprived of a limitation defence, that defence is not a total answer to any claim by the Claimants as it was in Barton. However, that does not affect the position that the Defendants will be prejudiced by the order sought under rule 6.15. The loss of a limitation defence is just the sort of prejudice which is relevant in this context: see Barton at [23].
    9. Ms Smith also referred to the evidence of the solicitors for Visa as to their reaction if they had been asked on 17 July 2020 to grant a further short extension of time for service of the claim forms. In his first witness statement, Mr Cassels, the solicitor for Visa, said that if Visa had been asked to agree an extension of time in relation to the Ideal and Vodafone claims, Visa would have been willing to do so. In his second witness statement, Mr Cassels said that if the Claimants had requested an extension of time (seemingly in the Ideal and the Vodafone claims), his firm and Visa would have considered the request and, if good reasons had been offered for a short delay, they would have been likely to treat the request favourably.
    10. Based on that evidence, Ms Smith submitted that the attitude of Visa to a request for an extension showed that Visa did not suffer any prejudice as a result of a short delay in serving a sealed amended claim form and that Visa was now seeking to take advantage of a windfall resulting from the Claimants’ error. I do not see how this evidence produces the result that Visa would not be prejudiced by an order in the Claimants’ favour under rule 6.15. In the absence of an order under rule 6.15, Visa has a limitation defence, at least to some extent. If an order is made in the Claimants’ favour under rule 6.15, then Visa loses that limitation defence. It is understandable that Visa’s position now is that it wishes to avail itself of its limitation defence. Visa is not prevented from taking that position by the fact that it would have been prepared to extend time if it had been asked to do so in advance of its acquiring its limitation defence. The limitation defence is a windfall for Visa but that does not mean that Visa would not suffer relevant prejudice by an order in the Claimants’ favour under rule 6.15.
    11. I have now addressed the three questions identified in Barton at [10]. The answers are that the Claimants did not take reasonable steps to effect service in accordance with the rules and that the Defendants would suffer prejudice if an order in the Claimants’ favour were made under rule 6.15 but, conversely, the Defendants’ solicitors were aware of the contents of the claim form before the time for service expired. I now need to stand back and ask: is there a good reason to treat the service of an unsealed claim form as good service? My conclusion is that there is not a good reason to do so. The reason why the Claimants are in this position is the mistake made by their solicitors. That is not a good reason for making an order under rule 6.15. I consider it to be a bad reason for the suggestion that I should make such an order.
The applications under rule 6.16
    1. In the alternative to its case in relation to rule 6.15, the Claimants ask for an order under rule 6.16 dispensing with service of a claim form. I have set out rule 6.16 earlier in this judgment. The court can make such an order “in exceptional circumstances”. I have considered all of the circumstances of the case when I asked whether there was a good reason to make an order under rule 6.15 treating the service of an unsealed claim form as good service. In view of my conclusion that, in all the circumstances, there is not a good reason to make an order under rule 6.15, I do not consider that this is a case where I should find that there are exceptional circumstances which justify the making of an order under rule 6.16. This was the approach taken by the Court of Appeal in Bethell Construction Ltd v Deloitte and Touche [2011] EWCA Civ 1321 at [28] and followed in Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) at [69].
    2. For the sake of completeness, I add that I have considered a number of cases which concerned the power to dispense with service originally conferred by rule 6.9. That rule did not itself lay down any criteria as to the exercise of that power but the case law made it clear that an order under rule 6.9 should only be made in exceptional circumstances or even, as it was said in one case, in “truly exceptional circumstances”. I have considered what was said about the operation of rule 6.9 in Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174 (and in a number of later cases which discussed Anderton), in Olafsson v Gissurarson (No 2) [2008] 1 WLR 2016 and in Phillips v Symes (No 3) [2008] 1 WLR 180. The facts of those cases are all different from the present case and I do not find any parallel in the facts of those cases to persuade me that the present case involves exceptional circumstances which would justify the court in making an order dispensing with service of the claim form under rule 6.16.
The applications under rule 3.10
    1. The Claimants then sought to rely on rule 3.10. I have set out rule 3.10 earlier in this judgment. The Claimants submit that what happened here was “an error of procedure” within rule 3.10 so that the effect of rule 3.10 is that the error of procedure does not invalidate the step taken in the proceedings, namely, the step which involved the service of an unsealed claim form on the Defendants. The Claimants accept that it would be open to the court to make an order, pursuant to rule 3.10(a), invalidating that step but if the court did not make such an order then the step taken was valid. The Claimants also say that it would be open to the court to make an order under rule 3.10(b) to remedy the error, if for some reason an order of that kind were thought to be desirable.
    2. There is clear Court of Appeal authority for the proposition that rule 3.10 does not have the effect contended for by the Claimants: see Vinos v Marks & Spencer plc [2001] 3 All ER 784 at [27], followed in a number of cases including Elmes v Hygrade Food Products plc [2001] CP Rep 71 at [13]-[14] and Steele v Mooney [2005] 1 WLR 2819 at [18]-[19] and [24]. Rule 3.10 is to be regarded as a general provision which does not prevail over the specific rules as to the time for, and the manner of, service of a claim form.
    3. Notwithstanding these decisions of the Court of Appeal, the Claimants refer to what was said by Lord Brown in Phillips v Symes (No 3). It is not necessary to summarise the more complex arguments which were considered in that case save to say that, in a case involving service out of the jurisdiction, a defendant was served with a translation of the claim form but not the original claim form itself. In the course of his judgment, Lord Brown considered whether this was an error of procedure within rule 3.10 and/or whether the court could dispense with service under the former rule 6.9 (now rule 6.16) on the ground of exceptional circumstances. In the event, Lord Brown held that the court should dispense with service under the former rule 6.9. Before considering the former rule 6.9, he commented that it seemed to him to be “at least arguable” that the court could simply order under rule 3.10(b) that the defendants were to be regarded as properly served.
    4. The Claimants accept that Lord Brown’s comment as to the scope of rule 3.10 was obiter but they say it should be considered to be strongly persuasive on that point. The Defendants submitted that the earlier decisions of the Court of Appeal, VinosElmes and Steele, were not cited to the House of Lords in Phillips v Symes. It is true that the Weekly Law Report of that case does not list these earlier decisions of the Court of Appeal as having been cited in argument but Phillips v Symes was an appeal from the decision of the Court of Appeal in Phillips v Nussberger [2006] 1 WLR 2598 and in his judgment in the Court of Appeal, at [63], Neuberger LJ had cited and applied Vinos and Elmes as to the scope of rule 3.10. Accordingly, Lord Brown’s comments must be seen as having been made in the knowledge of the earlier decisions of the Court of Appeal. Although the parties did not make submissions as to whether obiter comments in the House of Lords could overrule the ratio of earlier decisions of the Court of Appeal, my own view would be that the comments did not have that effect.
    5. Lord Brown’s obiter remarks in Phillips v Symes have been applied at first instance. In this respect I was referred to Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm), Bank of Baroda, GCC Operations v Nawany Marine Shipping FZE [2017] 2 All ER (Comm) 763 and Dory Acquisitions Designated Activity Co v Frangos [2020] EWHC 240 (Comm). The Defendants submitted that each of these cases at first instance was distinguishable from the present case. However, if the authorities had stopped there, I might have felt that I ought to follow a line of first instance authority on the scope of rule 3.10, whatever doubts I may have had.
    6. In fact, the line of first instance authority has since moved on. The scope of rule 3.10 was considered again in Piepenbrock v Associated Newspapers Ltd, to which I referred earlier. In Piepenbrock, the judge referred to VinosElmes and Steele before considering Phillips v SymesIntegral Petroleum and Bank of Baroda. The judge did not refer to Dory which had followed Integral Petroleum and Bank of Baroda. In Piepenbrock, the judge applied the earlier decisions of the Court of Appeal and distinguished Integral Petroleum and Bank of Baroda.
    7. Having considered the authorities, I conclude that I should follow the approach in Piepenbrock and hold that rule 3.10 does not enable me to find (under rule 3.10(a)) that there has, after all, been valid service on the Defendants or that I should make an order (under rule 3.10(b)) remedying the Claimants’ error as to service. If it is not possible to distinguish Integral Petroleum or Bank of Baroda as to the scope of rule 3.10, then I would have to choose between those two decisions and the decision in Piepenbrock. I find the reasoning in Piepenbrock to be more persuasive and I would follow it. It may be that it is my duty to follow Piepenbrock unless I considered that it was wrong: see Colchester Estates v Carlton plc [1986] Ch 80. As to that, I do not think Piepenbrock is wrong.
    8. I also heard submissions as to the approach to be adopted if rule 3.10 was capable of applying in this case. Mastercard submitted that I ought not to make an order under rule 3.10 in favour of the Claimants as that would deprive Mastercard of its limitation defence. However, as I have held that rule 3.10 is not capable of applying, it does not seem to me to be appropriate to discuss the matters which might need to be considered if rule 3.10 did apply.
The overall result as to service
  1. The overall result is that I hold that the claim forms in these proceedings have not been served and I decline to grant relief to the Claimants under rules 6.15, 6.16 or 3.10.
  2. This result applies in all of the cases before me. I add that in the specific case where the Claimants had the sealed amended claim form at 15.52 on 17 July 2020 and still did not serve it on that day, the Claimants had no real case for saying that there was a good reason for being given relief under rule 6.15; further, the circumstances in that case were not exceptional for the purposes of rule 6.16.