COURT OF APPEAL DISMISSES APPEAL WHEN CLAIM FORM SERVED ONE DAY LATE: “RELIANCE ON NON-COMPLIANT SERVICE IS NOT ONE OF THE INSTANCES OF OPPORTUNISM DEPRECATED BY THE COURTS”

March 24, 2022 · by · in Appeals, Applications, Service of the claim form

In The Good Law Project, R (On the Application Of) v The Secretary of State for Health And Social Care [2022] EWCA Civ 35 the Court of Appeal dismissed the claimant’s appeal against a a decision not granting any relief in relation to a mis-served claim form. It is a judgment that emphasises that the rules as to service are expected to be followed. The consequences of failure to comply are harsh, but the fault lies with the claimant’s solicitors. The courts will not readily grant any kind of relief when a claimant has failed to comply with the rules.

“… reliance on non-compliant service is not one of the instances of opportunism deprecated by the courts…The need for particular care in effecting valid service, particularly when there are tight time limits and/or a claimant is operating towards the end of any relevant limitation period, is self-evident.”

THE CASE

The judgment at first instance was looked at in detail here.

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.

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 judge refused the claimant’s applications and the action was dismissed.

THE COURT OF APPEAL DECISION

Lady Justice Carr gave the first decision.  There is a detailed judgment of the importance of service taking place correctly, and the limited powers a court has to rectify the situation retrospectively.  Further, even when the court has a discretion, it will only exercise such discretion it is very hard to obtain relief.

    1. As for the importance of valid service, service of a claim form can be distinguished from other procedural steps. It performs a special function: it is the act by which the defendant is subjected to the court’s jurisdiction. This quality is reflected in the terms of CPR 7.6, with its very strict requirements for any retrospective extension of time. Equally, reliance on non-compliant service is not one of the instances of opportunism deprecated by the courts (see for example Woodward v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 (“Woodward“) at [48]). The need for particular care in effecting valid service, particularly when there are tight time limits and/or a claimant is operating towards the end of any relevant limitation period, is self-evident.
Interplay between CPR 3.1(2)(a), CPR 6.15, CPR 7.6 and CPR 54.7
    1. The SSHSC submits that, “ideally”, the outcome of the appeal should not be determined by the procedural route chosen. There is force in that proposition. In many respects the issues for consideration under the various provisions overlap, such as the reasons for the error (or delay) and prejudice. Further, in Barton (at [21]), Lord Sumption commented, albeit “in passing”, as follows:

“I note…that if Mr Barton had made no attempt whatsoever to serve the claim form, but simply allowed it to expire, an application to extend its life under CPR 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 [under CPR 6.15] should be any different when he made no attempt to serve it by any method permitted by the rules.”

    1. However, specifically in relation to CPR 6.15 and CPR 3.1(2)(a), the tests to be applied are nevertheless conceptually separate and distinct. There is a principled basis for that distinction: under CPR 3.1(2)(a) it is not a question of perfecting defective service; rather it is a question of extending time in which to serve. Thus, the outcome of an application under CPR 6.15 may legitimately as a matter of principle be different to the outcome of an application under CPR 3.1(2)(a).
    1. As for the interplay between CPR 7.6 and CPR 3.1(2)(a), it was common ground before the Judge and before us that, where CPR 7.6 (extension of time to serve a claim form) is engaged, CPR 3.1(2)(a) is not. The specific overrides the general (see Vinos v Marks and Spencer plc [2000] EWCA Civ B526; [2001] 3 All ER 784 at [27]).
    1. There is also no dispute that CPR 7.6 applies to Part 7 and Part 8 claims. What is not common ground, however, is the relevance, if any, of CPR 7.6 to an application to extend time for service of a claim for judicial review under CPR 54. The Judge found, incontrovertibly, that if CPR 7.6 did apply to the application to extend time for service, the threshold conditions for granting an extension would not be met on the facts.
    1. Good Law argues that CPR 7.6 is of no relevance, in line with the Judge’s conclusion to this effect. The SSHSC by contrast argues (by way of Respondent’s Notice) that it is of direct application to an application to extend time for service of a judicial review claim, alternatively falls to be applied by analogy on an application under CPR 3.1(2)(a), alternatively informs the application of the principles identified in Denton v White on an application under CPR 3.1(2)(a).
    1. In order to understand the argument, it is necessary to follow a close procedural trail.
    1. CPR 7.5 deals with service of “a claim form” and sets out the service steps that must be taken by a claimant within four months of issue. CPR 54.7 provides for a different period (of seven days from issue) for service of judicial review claims. CPR 7.6 provides that a claimant can apply for an order extending the period for compliance with CPR 7.5 but makes no reference to CPR 54.7.
    1. However, CPR 54.1(2)(e) provides that the judicial review procedure is the Part 8 procedure as modified by CPR 54. CPR 8.9 sets out modifications to the general rules in CPR 7 where the Part 8 procedure is followed, but makes no modification or reference to CPR 7.6. Practice Direction 8A (at paragraph 4.1(1)) provides that CPR 7 and Practice Direction 7A should be applied where appropriate to all claims, including those to which Part 8 applies.
    1. Thus CPR 7.6 is not disapplied in respect of Part 8 (including judicial review) proceedings (unlike, for example, CPR 20.3(2) where it is expressly disapplied for Part 20 claims). Further, CPR 8.2, which deals with the contents of a Part 8 claim form, makes express reference to CPR 7.5, and there is no express equivalent provision to CPR 7.6 in CPR 54.
    1. The submission for the SSHSC then is that the general provisions of CPR 3.1(2)(a) are displaced by the specific provisions of CPR 7.6 not only in relation to Part 7 and 8 claims, but also judicial review claims under CPR 54.
    1. The insuperable hurdle for this primary position is the wording of CPR 7.6 which, as set out above, refers expressly and repeatedly only to CPR 7.5. Whilst this may be a lacuna in the CPR, which make no express provision otherwise for extending time for service of a judicial review claim, it is not possible to read in to CPR 7.6 what would be the necessary references to CPR 54.7.
    1. However, this does not dispose of the SSHSC’s alternative submissions that the principles behind CPR 7.6 are still relevant to Good Law’s application under CPR 3.1(2)(a), to which I turn in due course below.
The application under CPR 6.15
    1. CPR 6.15 is directed specifically to the rules governing service of a claim form, which contain the conditions on which the court will take cognisance of a matter at all. The relevant principles have been well-travelled in the authorities, with the decision in Barton, endorsing the earlier Supreme Court decision in Abela v Baadarani [2013] UKSC 44; [2013] 1 WLR 2043, at the helm. What constitutes “good reason” is essentially a matter of factual evaluation; over-analysis and copious citation of authority will not assist (see Barton at [9]).
    1. The following summary suffices for present purposes:
i) The test is whether in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant are good service;
ii) Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is a critical factor. But the mere fact that the defendant knew of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR 6.15(2);
iii) The manner in which service is effected is also important. A “bright line” is necessary to determine the precise point at which time runs for subsequent procedural steps. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period. It is important that there should be a finite limit on the extension of the limitation period;
iv) In the generality of cases, the main relevant factors are likely to be:

a) Whether the claimant has taken reasonable steps to effect service in accordance with the rules;

b) Whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired;

c) What, if any, prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form.

None of these factors are decisive in themselves, and the weight to be attached to them will vary with all the circumstances.

(See Barton at [9], [10] and [16].)

    1. Good Law suggests that Lord Sumption in Barton (at [9]) limited the question of prejudice to a consideration of the defendant’s knowledge of the contents of the claim form. That is not correct. First, Lord Sumption at no stage identified the relevant considerations in prescriptive or exhaustive terms; secondly, it is clear from the decision in Barton itself (at [23]) that Lord Sumption took the loss of an accrued limitation defence to be relevant prejudice for the purpose of CPR 6.15.
    1. Provided that a defendant has done nothing to put obstacles in the claimant’s way, a potential defendant is under no obligation to give any positive assistance to the claimant to serve. The potential defendant can sit back and await developments (see, albeit in the context of CPR 7.6, Sodastream Ltd v Coates [2009] EWHC 1936 (Ch) at [50(9)]). Thus, there is no duty on a defendant to warn a claimant that valid service of a claim form has not been effected (see Barton at [22] and Woodward at [44] to [47]).
    1. The result of the application of these principles can be harsh, as the first instance decisions to which the Judge referred demonstrate. In Barton itself a litigant in person purported to serve a claim form for professional negligence within time by email on the defendant’s solicitors (who were authorised to accept service, but not by email). The claim form expired unserved and the claim had become statute-barred. Both the District Judge and the Court of Appeal declined to authorise such service under CPR 6.15. The (majority in the) Supreme Court agreed. Piepenbrock (again involving a litigant in person) and Ideal (at first instance) (involving solicitors’ failures) are further examples of retrospective validation being refused in circumstances where the defendant had full knowledge of the contents of the claim form within time and the only prejudice was the loss of an accrued limitation defence.
  1. The Judge was well aware of the relevant principles and authorities, and there is no criticism of her exposition of the law. Equally, she was well aware of the detailed factual chronology and the parties’ competing submissions, which she set out. It was clear that Good Law did not take reasonable steps to effect service in accordance with the rules. The SSHSC had stated that he would accept service by email but was very clear that such service must be effected through the new proceedings address. The use of a designated email address would ensure certainty for the SSHSC in respect of all and any new claims. Good Law did not take any step to serve the sealed claim form by the specified method within the stipulated period set out in CPR 54.7. The SSHSC was aware of the contents of the claim form within the prescribed time limit for service but satisfying that criterion alone was not sufficient to justify the exercise of CPR 6.15. If the court granted the relief sought, the Defendant would suffer prejudice because it would be deprived of an accrued limitation defence. Her judgment was that there was no good reason to authorise service at an alternative place.

THE APPLICATION UNDER CPR 3.1(2)(a)

    1. Having reached the conclusion that CPR 7.6 was not engaged, the Judge turned to Good Law’s application under CPR 3.1(2)(a). She did so by reference to the principles identified in Denton v White in the context of an application for relief from sections under CPR 3.9 which, as settled in Hysaj, apply in the same way and with the same rigour to an application under CPR 3.1(2)(a).
    1. However and fundamentally, the court in Denton v White was not addressing relief from sanctions (or extensions of time) in the context of service of originating process. As set out above, applications for extensions of time for service of Part 7 and Part 8 claims do not fall under CPR 3.1(2)(a) (but under CPR 7.6). There is nothing to suggest that the court in Denton v White (or Hysaj) had in mind failures in service of originating process and applications for extensions of time for service of any claim of any sort, including judicial review claims. The three cases the subject of the appeals in Denton v White involved failures to comply with procedural failures during the life of the claims in question, that is to say after service of the claim forms. The breaches were variously late service of witness statements, failure to comply with an “unless” order, late service of a costs budget and late reporting of the outcome of settlement negotiations. The earlier case of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 WLR 795 (“Mitchell“) also arose out of the late filing of a costs budget. The cases following Mitchell and considered in Denton v White (at [13] to [19]) arose out of late service of particulars of claim, late disclosure, late service of witness statements and late tendering of security for costs. Hysaj involved late service of a notice of appeal.
    1. The question then is how the discretion in CPR 3.1(2)(a) to extend time for service of a judicial review claim should be exercised. There is no good reason why the requirements under CPR 7.6(2) for a retrospective extension of time to serve a Part 7 or Part 8 claim form should not apply equally to a judicial review claim, and every reason why they should. Indeed, Good Law’s skeleton referred to its application for an extension of time under CPR 3.1(2)(a) being made “by analogy to CPR 7.6”. As set out above, promptness is an essential requirement in any judicial review claim, and particularly in a procurement challenge. The time limit of seven days for service of a judicial review claim is (far) shorter than the time limits for service of Part 7 and Part 8 claims. It would be wholly counter-intuitive in those circumstances for the extension regime for judicial review claims to be more lenient than that applicable to Part 7 and Part 8 claims.
    1. On this approach, there was no justification for an extension of time for service of the claim form. Good Law had not taken all reasonable steps to comply with CPR 54.7. Thus, whilst the Judge erred in her approach on the application under CPR 3.1(2)(a), it was an error in Good Law’s favour. The outcome, namely dismissal of the application to extend time for service of the judicial review claim, remains the same.
  1. Even adopting the three-stage test in Denton v White, the nature of the failure in question, namely invalid service of originating process (as opposed to a procedural failure once the court’s jurisdiction over the defendant is engaged), would be the relevant context. Good Law’s failure to take all reasonable steps to serve would be the first and dominant feature. There was a failure to take all reasonable steps to serve the claim form. As the Judge pointed out when commenting on its gravity, it went to the fundamental question of jurisdiction. Beyond that, the delay was one day but against the benchmark of seven days. The reason for the failure was carelessness. Extending time would deprive the SSHSC of an accrued limitation defence.

CONCLUSION

    1. The procedural rules as to service are clear, as was the SSHSC’s nominated address for service. Compliance with the rules is part of the overriding objective in CPR 1.1. The availability of email communications does not lessen the importance of strict compliance, although it may mean that even greater care when it comes to service formalities needs to be taken. It is important to emphasise (again) that valid service of a claim form is what founds the jurisdiction of the court over the defendant. Parties who fail, without good reason, to take reasonable steps to effect valid service, in circumstances where a relevant limitation period is about to expire, expose themselves to the very real risk of losing the right to bring their claim.
    1. The consequences of the error in service may seem harsh in circumstances where the sealed claim form was sent to the SSHSC’s lawyers within time. But as the authorities demonstrate, CPR 6.15 is not a generous provision for claimants where there are no obstacles to valid service of a claim form within time. The power to validate will not necessarily be exercised even when the defendant, either itself or through its solicitors, is fully on notice within time and the only prejudice to the defendant would be the loss of an accrued limitation defence.
    1. As for extensions of time for service of a judicial review claim form, whilst CPR 7.6 does not directly apply, its principles are to be followed on an application to extend under CPR 3.1(2)(a). Thus, unless a claimant has taken all reasonable steps to comply with CPR 54.7 but has been unable to do so, time for service should not be extended.
    1. In summary, there was no error in the Judge’s approach that led to her conclusion that there was no good reason for the purpose of CPR 6.15 retrospectively to authorise service of the claim form at an alternative place, a decision that was properly open to her on the facts. Equally, her refusal retrospectively to extend time for service of the claim form under CPR 3.1(2)(a) was not wrong.
  1. For these reasons, I would dismiss the appeal.
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