JOINING A DEFENDANT THAT HAS NOT BEEN SERVED INTO AN ACTION AS A PART 20 DEFENDANT: SOME DIFFICULT ISSUES CONSIDERED
In Barclays Bank UK Public Ltd Co v London Plastic Surgeons Ltd [2021] EWHC 3698 (QB) Master McCloud considered a difficult issue relating to joinder when a defendant (who had been served) wished to bring proceedings against as defendant (who had not been served).*
“Where a claim form is issued by a Claimant against more than one Defendant but is not served on one of the Defendants, and time for service of the Claim expires without service on that Defendant, the Defendant who was served must use CPR 20.7 if it wishes to commence any Part 20 Claim against the non-served Defendant. If that were not the case then CPR 20.6 would enable a claim to commence and be pursued against the unserved Defendant without any valid originating process having been served and absent any order deeming it served (or extending time for service), merely by filing a Notice. There has to be at least one Originating Process served in respect of a Defendant whether that be the original claim (in which case CPR 20.6 may apply) or a separate Part 20 claim (in which case CPR 20.7 applies).”
THE CASE
The claimants issued proceedings against several defendants. In each case they did not serve proceedings on one of the defendants originally named in the claim form. Those defendants that had been served wished to bring proceedings against the “unserved” defendants.
THE ISSUE
The question was whether the served defendants could issue notices under CPR 20.6 or needed to issue a claim form under CPR 20 rule 7.
THE MASTER’S DECISION
The Master decided that claim forms needed to be issued.
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In my judgment it is fundamental to legal certainty that there must be an originating process for any claim to a substantive final legal remedy. I might also reduce that to the concept that ‘for any Prayer there must be a Process’, but were I to do so I expect that exceptions would be mailed in on the proverbial postcard to show why that would be a poor way of expressing it, and that the concept of a prayer in a pleading is I assume no longer one familiar to pleaders.
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The consequence of my former proposition, at least, is that when one looks at r20.6, the rules require that the defendant be a “party” already: if not, then a Part 20 Claim form must be issued. Given the importance of an originating process for any claim – subject to the limited exception that on rare occasions a claim may proceed on the basis of an undertaking to issue the originating process in an urgent case – I consider that r20.7 is the appropriate procedure in this circumstance. I observe that for example matters could become unclear in cases where overseas service is expected, were the contrary to be the position.
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Under rule 20.7 I have the power to allow an Additional Claim to be made with the Court’s permission under r20.7. That is not opposed. I direct therefore that the Additional Claim should be issued as a Part 20 claim and served, together with the claim forms under CPR 20.7. This applies to both cases in respect of which I am making this decision.
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In short therefore: