FAILURE TO SERVE THE CLAIM FORM PROPERLY WHEN YOU ONLY HAVE SEVEN DAYS TO DO SO: THIS MAY NOT BE GOOD LAW BUT IT IS THE LAW…

July 1, 2021 · by · in Applications, Service of the claim form, Serving documents

I have written many times about cases where claimants have come to grief in relation to service of the claim form.  Another example can be found in the judgment of Mrs Justice O’Farrell. In R (on the application of The Good Law Project) -v- The Secretary of State for Health and Social Care [2021] EWHC 1782 (TCC) she refused the claimant’s application for an extension of time when the claim form had not been served properly. An application under CPR 6.15 was also unsuccessful.   This was in the context of rules that require the claim form to be served within seven days of issue.  If another salutary lesson were needed, this case provides a further (and by no means unique) example.

A copy of the judgment is available here https://drive.google.com/file/d/1A9VLsEQQQCp9jTpakkg5SwOLwAHVCFx2/view

THE CASE

The claimant, The Good Law Project, was bringing an action against the defendant Secretary of State,  challenging the lawfulness of contracts issued for the supply of respirators.

SERVICE OF THE CLAIM FORM

The claimant:

  • Served an unsealed copy of the claim form the a “newproceedings” email address designated by the Government Legal Department.
  • Sent the same letter and documents to the solicitor dealing with the matter for the GLD informing them that a protective claim form had been issued that day.
  • Later sent copies of the sealed claim form to three named individuals within the GLD.

The time for service of the claim form in the administrative court is within 7 days of issue by the court.    Proceedings were issued on the 28th April 2021 and the period for service expired on the 5th May 2021.

At this stage the claimant had not filed a sealed copy of the claim form at the designated address. Although sealed copies had been sent to various individuals within the GLD.

THE APPLICATIONS

The claimant made an application under CPR 6.15 that the steps already taken by the claimant represented good service, alternatively seeking an extension of time for service.

The defendant made an application that the court had no jurisdiction because the claim form was not served in time.

THE RESULT: THE CLAIMANT’S APPLICATIONS WERE NOT SUCCESSFUL

The judge:

 

  1. Refused the claimant’s application for an order under CPR 6.15. The claimant failed to serve a sealed claim form at the designated email address within time.  It was not sufficient to show that the defendant was aware of the contents of the claim form within time.  The defendant would suffer prejudice in being deprived of a limitation defence.  The claimant had failed to establish good reason for the court to authorise alternative service of the claim form.
  2. Similarly the claimant’s application for an extension of time was refused.   CPR 7.6 did not apply to service of a claim form in judicial review proceedings.   The court considered that Denton principles applied.
  3. It was inappropriate for the court to extend time applying those principles.
  4. There failure to effect valid service within time was serious and significant.  The delay was one day, but this was against a benchmark of seven days.
  5. The reason for the failure to serve was a careless mistake made by the claimant’s solicitors.
  6. Extending time would deprive the defendant of any accrued limitation defence.
  7. A material circumstance was the very tight deadline imposed by the rules in this case to challenge the lawfulness of any public procurement contract.
  8. In those circumstances it would not be appropriate to grant an extension of time.

THE DEFENDANT’S APPLICATION SUCCEEDED

Consequently the defendant’s application was successful. The application to set aside the claim form was successful.

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