ANOTHER SERVICE OF THE CLAIM FORM CASE: THE COURT WILL NOT “REWRITE HISTORY”: SERVICE HAS TO TAKE PLACE ACCORDING TO THE RULES: EVEN AGAINST “PERSONS UNKNOWN”

The judgment of Mr Justice Nicklin in London Borough of Ealing v Persons Unknown [2021] EWHC 2132 (QB) serves as a stark reminder that there is a duty to comply with the rules relating to service of the claim form, even when the case is against “persons unknown”.

 

“It might be thought that relegating service of a Claim Form to matters of “paperwork” somewhat downplays the importance of this important phase of civil litigation.”

“In my judgment, the correct analysis is that the Claimant has not made an error in an application it made. It made an error by not making an application at all. That is not something that can be corrected by an application under CPR 3.10:”

THE CASE

The claimant brought proceedings seeking injunctions and possession of land that was being used by “persons unknown”.

THE PROCEDURAL MISTAKES MADE BY THE CLAIMANT

A number of omissions and mistakes were made in relation to service of proceedings.  An interim injunction was obtained.   However the issue of service of the claim form was not dealt with.

The Application Notice did not contain any application for an order for alternative service of the Claim Form and Mr Woolf accepts that he did not make any application at the hearing. The requirements for an order for alternative service were therefore not addressed. There was also no evidence before the Court supporting any such application and Mr Woolf did not specifically take the Judge to paragraph 1 of the draft order which purported to deal with service of the Claim Form. The issue of attaching a power of arrest to the injunction order was also unaddressed by Mr Woolf at the hearing.
  1. Probably as a result of the application for alternative service not being addressed at the hearing, the terms of the order did not comply with CPR 6.15(4). The rules mandate that an order for alternative service must specify the date on which the Claim Form is deemed served and the period for filing an acknowledgement of service by the Defendant. The Order of 10 May 2019 did neither.

THE CLAIMANT’S APPLICATION FOR RELIEF

The claimant, realising its errors, made an application under CPR 3.10.
    1. If the Claimant is not successful with its application under CPR 3.10, it does not wish to pursue the alternative application under CPR 6.15(2), seeking retrospective validation of the efforts to serve the Claim Form on the Defendants. The Claimant does not intend to seek any relief against the 2 “Persons Unknown” Defendants in the existing proceedings. The intention behind the application under CPR 3.10 is to enable a subsequent application to be made to join named Defendants to the proceedings.
    1. CPR 3.10 provides as follows:
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.”
    1. Mr Woolf accepts the following:
a. the Application Notice seeking the interim injunction did not include any request for the service of proceedings by an alternative method or at an alternative place;
b. the draft order that was presented to Lang J included the provision as to alternative service in paragraph 1, but did not include any reference to the requirements under CPR 6.15(4)(b) and (c); and
c. no application was made to Lang J for an order for alternative service of the Claim Form and there was no discussion of the issue, although Mr Woolf submits it is clear that the Judge did consider the wording of the draft injunction order quite carefully during the hearing.
  1. Nevertheless, Mr Woolf submits, on behalf of the Claimant, that the Court should invoke CPR 3.10 and declare that, despite the failure to comply with CPR 6.15(4)(b) and (c), the proceedings should continue as the failure did not invalidate the method of alternative service that was made in compliance with the injunction order. The failure of the order to include the requirements of CPR 6.15(4)(b) and (c) in the injunction Order was an error, but it is not so significant an error that should lead the Court to conclude that the service of the proceedings was not valid. The absence of the deemed date of service, he argues, is likely to benefit the Defendant as it prevents the Defendant ever being subject to time requirements, particularly the date for filing an acknowledgement of service or defence.

THE COURT’S REJECTION OF THE CLAIMANT’S ARGUMENTS

The judge found that the CPR 3.10 could not be used in these circumstances.
    1. The contention that the Claimant is trying to correct an error in an application that it claims to have made would require a rewriting of history. The Claimant made no application for an order under CPR 6.15 for alternative service of the Claim Form. It did not make one in an application notice and it did not make one orally at the hearing before Lang J. Mr Woolf submitted that the Judge went carefully through the order. I can only assess that submission by reference to the transcript of the hearing, and it is clear from that that Mr Woolf did not take the Judge to paragraph 1 of the draft order. It appears to have been included in the final order, not as a result of any conscious decision-making after argument, but by default.
    1. Insofar as the skeleton argument for the hearing could be said to address the issue of service of the Claim Form at all, it was in a passing reference to service of the “paperwork” so that “persons interested in the application can have full and unrestricted access to the paperwork”. On a most charitable construction that cannot even arguably amount to an application for an order under 6.15(2). Indeed, apart from paragraph 1 of the draft/order the Claimant seems not to have thought about what an application for an order for alternative would require by way of evidence in support, or the requirements of CPR 6.15(4). That is before any attention is paid to whether the proposed method of alternative service would satisfy the requirement that it could reasonably be expected to bring the proceedings to the attention of the defendants.
    1. In my judgment, the correct analysis is that the Claimant has not made an error in an application it made. It made an error by not making an application at all. That is not something that can be corrected by an application under CPR 3.10: see Vinos. There has been no (mistaken) failure to comply with the Civil Procedure Rules. The Civil Procedure did not require the Claimant to make an application under CPR 6.15, any more than it required the Claimant, for example, to apply for an order dispensing with service of the Claim Form altogether under CPR 6.16. What the CPR required the Claimant to do was to serve the Claim Form within the period provided by CPR 7.5. It has not done so.
    1. Even were I wrong about that, and that CPR 3.10 would permit the Court to correct the defects in the purported alternative service order, it seems to me that the real question is whether there was a proper basis to make the order at all. It is quite clear that the Judge, because she was not asked to, did not make any decision on whether it was right to make an order for alternative service. In my judgment it was not.
    1. Requirements for an order for alternative service in a “Persons Unknown” case are set out in London Borough of Barking [31]-[34], [43]-[48] and [164]-[166]. There is an important interrelation between any application for an order for alternative service of a Claim Form under CPR 6.15 and the definition of the Persons Unknown Defendants:
“The greater and more ambitious the width of the definition of “persons unknown” in the claim form, correspondingly the more difficult it is likely to be to satisfy the requirements for an order for alternative service”.
On the evidence, the Claimant could not demonstrate before Lang J, and cannot demonstrate now, that the order for alternative service that was made (even if it were an order for alternative service) could be expected to bring the proceedings to the attention of the very large number of people who fell within the very wide category of persons unknown in this case. Had an application actually been made for an order under CPR 6.15 for alternative service of the Claim Form on the Defendants Persons Unknown, it would have been refused.
    1. In argument, Mr Woolf appeared to submit that in the event that the Court refused the CPR 3.10 application then the Claimant might press on, on another occasion, with an application to amend to add named defendants to the proceedings. In my judgment, that option is not available.
    1. The Claim Form was issued on 10 May 2019. The Claimant had four months to serve it on the Defendants. The Claimant does not suggest that it has been actually served on anybody. The consequence of my judgment is that the Claimant has also not obtained an order for alternative service of the Claim Form. The Claim Form is no longer valid. There is no civil claim left to which amendments could be made or parties added. If the Claimant wants to seek an interim injunction or any other remedy against named defendants (as outlined in the evidence before me) then it will have to do so by way of fresh proceedings. This claim is at an end.
  1. Formally I will discharge the injunction order of 10 May 2019 and direct that the Claimant must remove all copies of the injunction order from the sites at which it has been displayed.