CLAIMANT FAILS TO GET AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: IN A CASE WHERE THE COURT HAD LOST THE FILE AND NOT SENT OUT A SEALED CLAIM FORM WITHIN THE FOUR MONTH PERIOD

NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL. SEE THE BLOG POST ABOUT THE APPEAL DECISION HERE.

The judgment of Robin Vos (sitting as a Deputy Judge of the High Court) in Walton v Pickerings Solicitors & Anor [2022] EWHC 2073 (Ch), shows how strict the rules as to service of the claim form are.   The claimant was unable to serve the sealed claim form because the court had lost the file and not sent the claim form to the claimant.   The claimant served unsealed claim forms within the four month period for service.  The judge upheld a decision not to make an order that service of the unsealed claim forms stand as effective service (effectively granting a retrospective extension of time).

This case shows two common errors (i) leaving it until the last moment to issue proceedings; leaving it to the last minute to “serve” proceedings.   The claimant’s failure to take steps to obtain a sealed copy within the four month period to serve led to the court refusing an application that service of the unsealed copies be held to be effective service.

THE CASE

The claimant issued proceedings against the defendant.  He issued personally, paid the fee of £10,000 and was given a receipt.  He elected to serve the proceedings himself.

Because of Covid issues the court did not send out a copy of the sealed claim form for service.  Proceedings had been issued in July 2020, time for service expired on the 20th November 2020.

On the 17th November 2020 the claimant served both of the defendants with unsealed claim forms.   The defendants asked where the sealed claim form were.  The claimant then made enquiries of the court, obtained sealed claim forms and served them in December 2020.

THE COURT’S LOSS OF THE FILE

The defendants asked why sealed claim forms had not been served.  The claimant made enquiries, it transpired that the court had lost the file.

1. 1. The following day, Mr Brophy asked for a copy of the sealed claim form. Mr Walton responded to say that he had sent a copy of the unsealed claim form and the particulars of claim to the Court and informed the Court that these documents had been served. He observed that “we will no doubt receive sealed copies with a claim number but I would be surprised if it was this side of Christmas”.

1. 1. Mr Walton did nonetheless try to contact the Court but with little success as nobody answered the telephone and the only email address he could find was for the Administrative Court Office. Eventually he went to the Court in person on 25 November 2020 and discovered that the Court had no record of the claim.

1. Following further discussions between Mr Walton and the Court, a court manager accepted that something had gone wrong and that the Court would issue and seal a claim form backdated to 20 July 2020. However, to enable this to happen, Mr Walton was told to provide a new version of the claim form in the format required for the Business and Property Courts as the original claim form he had used was the template for the Commercial Court financial list.

The claimant received a copy of the sealed claim form on the 7th December 2020 and served it on the defendants on the 10th December. On the 17th December he made an application to extend time for service of the claim form.  This was made under CPR 3.10 rather than CPR 7.6.

THE CLAIMANT’S UNSUCCESSFUL APPLICATION BEFORE THE DEPUTY MASTER

The claimant’s application was refused by the Master. It was held that CPR 3.10 did not apply to claim form issues (something confirmed by the Court of Appeal decision in Ideal Shopping Direct Limited v Mastercard [2022] EWCA Civ 14 at [145 and 151].

THE CLAIMANT’S ADDITIONAL ARGUMENT ON HIS (UNSUCCESSFUL) APPEAL

On appeal the claimant, for the first time, sought to rely on CPR 6.15 – allowing service by a different method.  This was a means by which the court could, effectively, ratify service of the unsealed claim forms and the claimant’s action be served.

THE JUDGE’S FINDINGS ON APPEAL

There was an issue as to whether the claimant came within the criteria for a retrospective application allowed by CPR 7.6(3).  This rule is a major factor when the court considers exercising any discretion that involves a retrospective application for an extension of time, including an application under CPR 6.15.

“(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –

(a) the court has failed to serve the claim form; or

(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and

(c) in either case, the claimant has acted promptly in making the application.”

The judge found that:

1. There was no “automatic” right to an order if a claimant fell within CPR 7.6.  The court still had a discretion even if the claimant met the criteria.
2. The proviso in relation to the court’s failure to serve the claim form only applied when the claimant had asked the court to serve. In the current case the claimant had asked the court not to serve.

“In my view, the Deputy Master was therefore wrong to conclude that the condition in CPR Rule 7.6(3)(b) was not satisfied as the condition is not that Mr Walton was required to take all reasonable steps to obtain the sealed claim form but was only required to take all reasonable steps to comply with CPR Rule 7.5 (i.e. to serve the claim form within the four month time limit) once the sealed claim form was in his possession.”

Whilst the Deputy Master may have erred in finding that the claimant did not fall within CPR 7.6(3) it was still open to the court to refuse an extension of time in any event.  The Deputy Master refused the claimant’s application in the current case.   This could not be said to be an error which could be overturned on appeal.

UPHOLDING THE REFUSAL TO GRANT AN EXTENSION OF TIME

The Deputy Master had held that the court retained a discretion to allow an extension of time, and that discretion should not be exercised on the facts of the current case.

1. 1. As I have mentioned, the Deputy Master indicated that, even if the threshold conditions in CPR Rule 7.6(3) had been satisfied, he would not have granted an extension of time. In the circumstances, I should only interfere with this, as I have said, if there is some flaw in his reasoning or if he is plainly wrong. I do not consider that he made any error.

1. 1. His reasons why he would have refused to exercise his discretion, despite the mistake made by the Court, were essentially the same as those which he gave for finding that the threshold conditions were not satisfied and included the following:

104.1 Mr Walton had left it until the last possible minute before the expiry of the limitation period to issue a claim form.

104.2 He issued the claim in the Royal Courts of Justice rather than the Rolls Building which he considered may have contributed to the Court losing the claim form.

104.3 Mr Walton chose to take responsibility for serving the claim form.

104.4 He took no action to contact the Court to find out the whereabouts of the sealed claim form until prompted to do so by the second Defendant on 18 November 2020.

104.5 When Mr Walton did contact the Court, he was able to resolve matters within about three weeks.

104.6 Mr Walton could have made an application for an extension of time before the end of the period for service.

104.7 The sealed claim form differed in a material respect from the unsealed claim form which had been sent to the Defendants.

104.8 If the extension were granted, the Defendants would potentially be deprived of their limitation defences.

1. 1. Apart from the second point, which is in my view speculation, these are all legitimate factors. It is clear from the judgment as a whole that the second point was not a significant factor in the Deputy Master’s thinking and would not have affected his conclusion.

1. 1. Again, Mr Elgot refers to the decision of the Court of Appeal in Power in support of his submission that the extension of time should be granted notwithstanding the fact that Mr Walton did not chase up the claim form noting that, in that case, Mr Power’s solicitors did not chase up the claim form but that the Court of Appeal nonetheless made an order in Mr Power’s favour in relation to alternative service.

1. 1. However, in my view, the circumstances in that case were different. To start with, the point which the Court was considering was whether there was a good reason to retrospectively approve alternative service. In relation to this, significant factors were that the defendant had in fact received the sealed claim form from the Court (and passed it on to its solicitors) and that correspondence had passed between the parties’ solicitors which clearly gave the impression that the claim was acknowledged by the defendant’s solicitors to be live.

1. 1. In this case, neither of those features are present. The Defendants had not received a sealed claim form and, far from giving the impression that the claim was live, the second Defendant specifically requested a sealed claim form so that he could know that the proceedings had been validly commenced.

1. 1. It was these factors that, in addition to the mistakes made by the Court, outweighed any failures on the part of Mr Power’s solicitors in chasing up the sealed claim form. In this case, it is not suggested that there are any additional countervailing factors to be weighed in the balance which might suggest that it would be in accordance with the overriding objective to grant the extension of time.

1. 1. Mr Elgot also relies on Heron where, again the Court was willing to cure the defect in service in circumstances where the Court was at fault. I accept that the position in Heron is different to Power. In that case, the defendant had only received an unsealed claim form and Particulars of Claim (as in this case) and there is no suggestion that the defendant did anything other than object to the defective service.

1. 1. However, there are two key differences. The first is that, in Heron, the period for service was only seven days. The balancing exercise may well be quite different where the claimant fails to take steps within that seven day period compared with the current situation where Mr Walton failed to take any steps for over three months.

1. 1. In addition, as I have said, in Heron the judge treated the exercise as a “general merits” test under what appeared to be CPR Rule 3.10 which does not take into account the fact that the exercise of discretion under CPR Rule 7.6(3) must be undertaken against a background which requires consideration of the particular importance of claim forms being served in accordance with the requirements of the CPR. It is notable that the Judge in Heron placed reliance at [60] on the fact that the defendant knew the nature of the claim against it and that proceedings were about to be started. It is clear from what the Supreme Court has said subsequently in Barton that this is not enough.

1. 1. I am satisfied that the Deputy Master took account of all of the relevant circumstances in the light of the overriding objective and I do not consider that there was any flaw in his reasoning or that his conclusion was wrong. Indeed, had I been exercising my own discretion, I would agree with the Deputy Master that, for the reasons he has given, the Court should not exercise its discretion to grant the extension of time. This is particularly so, bearing in mind the reasons why there are strict rules relating to the service of claim forms, as explained by Lord Sumption in Barton.

1. 1. I accept that the Court is at fault in losing the original claim form and, as a result of this, not providing a sealed claim form to Mr Walton in order to enable him to serve it on the Defendants within the relevant time limit. I also accept that this is a significant factor in favour of granting an extension of time.

1. 1. However, in my view, the Deputy Master was right that the other factors in this case outweigh the mistake made by the Court. In particular, as the Deputy Master suggests, it was entirely reasonable to expect a litigant who knew that a sealed claim form had to be served on the Defendants by a particular date to contact the Court in good time if the claim form had not been received.

1. 1. It was entirely unreasonable of Mr Walton to serve the unsealed claim form, knowing that this did not comply with the rules and having taken no steps at all to clarify the position with the Court. Like the Deputy Master, I do not accept that any of the reasons given by Mr Walton for failing to contact the Court (as set out above) provide any justification for his failure to do so sooner than he did.

1. 1. Again, as the Deputy Master observed, it is clear from what actually transpired in November and December 2020 that, if Mr Walton had contacted the Court even three weeks earlier (at the end of October 2020), it would have been possible to obtain a sealed claim form in time for it to be served within the relevant time limit.

1. 1. It is also relevant the Mr Walton took no steps before the expiry of the period for service of the claim form to obtain an extension of time either by consent or by making an application to the Court.

1. 1. In addition, I agree that the clear prejudice to the Defendants in terms of limitation arguments which they potentially have available to them, firmly tips the balance in favour of the Defendants and against the grant of any extension of time for the service of the claim form.

Service by alternative means – CPR Rule 16.5

1. 1. CPR Rule 6.15 allows the Court to authorise service of a claim form by a method or at a place not otherwise permitted by Part 6 if “it appears to the Court that there is good reason” to do so. CPR Rule 6.15(2) extends this to allow the Court to make an order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

1. 1. In this case, the only step taken within the relevant time limit was the service of the unsealed claim form together with the particulars of claim on 17 November 2020.

1. 1. The Court of Appeal in Ideal Shopping noted at [36-37] that there may be some doubt as to whether CPR Rule 6.15(2) permits the Court to treat the service of an unsealed claim form as good service. The reason for this is that CPR Rule 6.15 allows the Court to make an order in relation to the method of service or the place of service. It does not, on the face of it, allow the Court to treat the service of something other than a sealed claim form as good service.

1. 1. In that case, the Judge in the Court below nonetheless considered whether there was a good reason to make an order for alternative service based on what the Court of Appeal describes at [37] as “the somewhat liberal assumption” that the Court did in fact have power to make such an order. In the event, the Judge declined to make such an order and there was no appeal against this decision and so the Court of Appeal was not required to decide the point.

1. 1. Mr Brown submits that CPR Rule 6.15 does not permit the Court to approve service of a document other than the sealed claim form. He notes that it is clear from the decision of the Court of Appeal in Ideal Shopping at [34/36] that an unsealed claim form is not a claim form for the purposes of the rules relating to service. On this basis, the reference in Rule 6.15(2) to the claim form must be to the sealed claim form.

1. 1. Mr Elgot, on the other hand, suggests that, in assessing the step which has been taken for the purposes of Rule 6.15(2), it is necessary to look at what is available to the Claimant. On this basis he says that the reference to the claim form should not be treated as a reference only to a sealed claim form.

1. 1. In my view, Mr Brown is right. The Court has no power under CPR Rule 6.15 to make an order permitting the service of a document other than the sealed claim form or for treating the service of a document other than the sealed claim form as good service.

1. 1. The reason for this is that the rule is quite clear that it only permits changes to the method of service or the place of service. The methods of service are set out in CPR Rule 6.3 which specifically cross refers to the power in Rule 6.15. The methods of service set out in Rule 6.3 unsurprisingly relate to the way in which the sealed claim form is delivered to the defendant. There is no suggestion that what can be delivered is something other than the sealed claim form.

1. 1. If the Rules were intended to allow something other than the sealed claim form to be delivered to the defendant, I would have expected them to set this out clearly, particularly given the important purposes fulfilled by the service of the claim form as explained by Lord Sumption in Barton.

1. 1. This conclusion is in my view reinforced by the existence of CPR Rule 6.16 which, in exceptional circumstances, permits the Court to dispense with service of the claim form. This Rule would be unnecessary if CPR Rule 6.15 in any event permitted the Court to treat some step other than service of a sealed claim form as good service.

1. 1. That is sufficient to dispose of this point given that what was served on 17 November 2020 was the unsealed claim form. However, in case I am wrong and that service of an unsealed claim form can represent an alternative method of service, I will consider whether, in the circumstances of this case, I should make an order that service of the unsealed claim form together with the particulars of claim on 17 November is good service.

1. 1. Mr Brown, however, makes the additional point that, in any event, even if Rule 6.15(2) could be read as including an unsealed claim form, the problem in this case is that the claim form which was served on 17 November 2020 differed in a material respect to the claim form which was eventually sealed by the Court. On any basis, he submits that Rule 6.15 cannot have been intended to allow the Court to authorise service of a document which is different to the claim form which is eventually sealed by the Court. If so, he asks rhetorically how significant a difference would be acceptable?

1. 1. Mr Elgot’s response to this was that, as long as the Defendants had all the information they needed to understand the nature of the claim against them and that proceedings were in the course of being issued, this would be sufficient. He makes the point that, in this case, the Defendants had been sent the receipt showing the payment of the court fee in July 2020 and also had the particulars of claim which were sent to them on 17 November 2020. They were therefore aware that proceedings were being issued as well as the precise details of the claim which was being made against them which were contained in the particulars of claim.

1. 1. 1. Whilst there is some force in Mr Elgot’s submission, it is clear from the comments of Lord Sumption in Barton at [16] which I have already referred to that it is not enough that the defendant is aware of the contents of the claim form.

1. 1. Lord Sumption also refers to and approves the principles set out by Lord Clarke in Abela. His summary at [9] of those principles includes at [(2)] the following:

“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: para 37. This is therefore a ‘critical factor’. However, ‘the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under Rule 6.15(2)’: para 36.”

1. 1. Given the critical importance ascribed by both Lord Clarke and Lord Sumption to the defendant being made aware of the content of the claim form, in my view, the service of a claim form which differs in material respects to the claim form which is eventually sealed and issued by the Court is very unlikely to justify an order under CPR Rule 6.15 even if it were right that the Court has power to make an order treating service of something other than the sealed claim form as good service of the sealed claim form itself.

1. 1. I do however accept that, if it is right that CPR Rule 6.15 allows the Court to approve service of something other than the sealed claim form, it would logically still be necessary to take account of all of the relevant factors and to determine whether there is a “good reason” for making such an order. No doubt the extent of any difference between what was served and the sealed claim form would be a relevant factor.

1. 1. In Good Law Project, Lady Justice Carr suggested at [55] (summarising the principles set out by Lord Sumption in Barton at [9]and which were in turn derived from the decision of the Supreme Court in Abela at [33-37]) the following approach to determining whether there is a good reason to permit alternative service:

“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.”

1. 1. Mr Elgot however submits that, given the mistakes made by the Court, this case cannot be said to fall within the “generality of cases”, referring again to Power and Heron. Whilst it is true that, in Power, the Court made an order under Rule 6.15 despite some criticism of Mr Power’s solicitors for failing to chase up the issue of the sealed claim form, the “good reasons” for doing so included the fact that the defendant and its solicitors were in possession of the sealed claim form (it having been sent to the defendant by the Court) and that the defendant’s solicitors had entered into correspondence with Mr Power’s solicitors in a way which gave the impression that the valid service had been effected. As I have already said, neither of these factors are present in this case.

1. 1. In particular, the Defendants in this case at no point prior to the expiry of the deadline received the sealed claim form. In addition, the sealed claim form which was eventually issued and served contained material changes in the section describing the brief details of the claim. Although the Defendants did also receive the particulars of claim, it cannot be said that the service of the unsealed claim form on 17 November 2020 fulfilled the purposes of ensuring that the contents of the sealed claim form were brought to the attention of the person to be served given that the contents differed from the claim form which was eventually issued and sealed and that what was served did not enable the Defendants to know when the proceedings had been commenced. Lord Sumption in Barton at [16] considered it likely that this would be a necessary (although not sufficient) requirement for an order under CPR Rule 6.15.

1. 1. As far as Heron is concerned, the Court did not apply CPR Rule 6.15 and did not therefore consider whether there was a “good reason” to treat the service of the unsealed claim form as good service. In addition, it is relevant to note that, as was the case in Power, there was no difference between the unsealed claim form which had been sent to the defendant and the claim form which was eventually issued and sealed (see Heron at [29]).

1. 1. In answering the other questions posed by Carr LJ in Good Law Project, for the reasons set out above in relation to the application for an extension of time, I do not consider that Mr Walton took reasonable steps to effect service in accordance with the rules. Although, due to the Court’s mistake, he did not have a sealed claim form, he took no steps to find out from the Court why he had not received one until two days before the expiry of the deadline for service.

1. 1. As far as the third question is concerned, there would be clear prejudice to the Defendants if an order was made under Rule 6.15 as it would deprive them of the ability to rely on their limitation defences. As explained by Carr LJ in Good Law Project at [65], the fact that CPR Rule 6.15(2) was introduced to permit retrospective authorisation in circumstances where limitation was an issue does not mean that the loss of a limitation defence is not a relevant factor, as indeed it was in Barton itself.

1. 1. I do accept that the Court’s failure to provide Mr Walton with a sealed claim form is a significant factor to take into account. On its own, it is capable of being a “good reason” for making an order under CPR Rule 6.15. However, in this case, there are other factors to take into account. These include the fact that the unsealed claim form differed from the final version in material respects, that Mr Walton could and should have made enquiries of the Court as to the whereabouts of the sealed claim form and that the Defendants will be deprived of potential limitation defences. In my judgment, it is also relevant, as it was in Barton, that Mr Walton chose to issue the claim form at the very end of the limitation period, leaving himself with little room for manoeuvre if anything went wrong.

1. 1. Overall, I am satisfied that, even if I had power to do so, taking into account all the relevant factors, there is no good reason to make an order treating the service of the unsealed claim form together with the particulars of claim on 17 November 2020 as good service.

Conclusion

1. Given the conclusions I have reached, this appeal must be dismissed and the order of the Deputy Master upheld.