CLAIMANT FAILS TO SERVE THE CLAIM FORM PROPERLY: DEFENDANT FAILS TO NOTICE AND APPLIES TO STRIKE OUT ACTION: APPLICATION WAS UNNECCESARY & DEFENDANT NOT AWARDED COSTS

In Johnson v Devon And Cornwall Police & Ors [2023] EWHC 690 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) held that a defendant should have known that the proceedings against it had not been served properly.  The defendant’s application to strike out was unnecessary and the defendant was not awarded costs.

“… the rules give a discretion to the court as to whether to make a costs order at all and, if so, what costs order to make. In circumstances where the relevant lawyers have entirely failed to spot that there was no claim in the first place because it had expired before they even knew about it and have sought to make an application on a completely false basis for a strike-out which in fact could not be made and could not be dealt with, it seems to me that my discretion would be not to make a costs order in the first place. So I am afraid, Mr Edwards, you win but you do not get your costs.”

THE CASE

The claimant brought an action against five defendants.  One of the defendants was “The Manager”, Exeter Insolvency Service”.    That defendant applied to strike the action out.  However the judge held that that defendant had never, in fact, been  properly served. The application was unnecessary. The defendant could not recover its costs.

1. 1. In these proceedings the third defendant, the Insolvency Service, has made an application to strike out the claim brought by Mrs Johnson against it under the name of “The Manager of the Exeter Insolvency Service”. But there is a threshold question. The third defendant has not filed an acknowledgement of service. I was told that this is because the third defendant had not actually been served, in the sense of having notice of the claim, and only became aware of these proceedings when it was sent a copy of a bundle by another defendant in the claim, who was also making an application to strike out the proceedings. As a result, this application was mounted at relatively short notice.

1. 1. It appears from the court file that what happened was that, when the claim form was issued, the claimant asked the court to serve the proceedings. This, of course, they did in the usual way, by posting them out with a response pack to each of the five defendants at the addresses given in the claim form. In the case of the third defendant, that was The Manager, Exeter Insolvency Service, Senate Court, Southernhay Gardens, Exeter, EX1 1UG. Unfortunately, those papers appear never to have been passed to anyone higher up in the Insolvency Service. Certainly they did not go to the Government Legal Department or, indeed, to any other solicitors who would have known, certainly if they were connected with the government service, that the service of legal proceedings on government institutions and departments is governed by the Crown Proceedings Act 1947, section 17(3) and 18 which read as follows.

3 “17(3): Civil proceedings against the Crown shall be instituted against the appropriate authorised Government department, or, if none of the authorised Government departments is appropriate or the person instituting the proceedings has any reasonable doubt whether any and if so which of those departments is appropriate, against the Attorney General.”

18. All documents required to be served on the Crown for the purpose of or in connection with any civil proceedings by or against the Crown shall, if those proceedings are by or against an authorised Government department, be served on the solicitor, if any, for that department, or the person, if any, acting for the purposes of this Act as solicitor for that department, or if there is no such solicitor and no person so acting, or if the proceedings are brought by or against the Attorney General, on the Solicitor for the affairs of His Majesty’s Treasury.”

I should say that the Solicitor for the Affairs of His Majesty’s Treasury, also known as the Treasury Solicitor, is now recognised as an entity called the Government Legal Department, of which the Treasury Solicitor is the head.

1. 1. In the White Book, volume 1, 2022 Edition, p.2310, there is a list of authorised government departments and the names and addresses for service of the person who is or is acting for the purposes of the 1947 Act as solicitor for those departments. It is published by the Minister for the Civil Service. Amongst the list of the authorised government departments is the Department for Business, Energy and Industrial Strategy. That may or may not be the current name, but that department certainly appears in that list. The name of the solicitor given for service is the Treasury Solicitor at the Government Legal Department. In these circumstances, where there was primary legislation requiring that the Government Legal Department concerned, that is BEIS, has to be served in a particular way, the fact that the court staff unknowingly sent these documents to the manager of the Exeter Insolvency Service by first class post at the office in Exeter was a mistake. Moreover, it is a mistake which the court in my judgment has no power to put right, because this is a requirement of primary legislation, and nothing in the CPR can override that.

1. 1. In my judgment, the proceedings in this case were not properly served on the third defendant at any time. Of course, the life of the claim form is four months from issue. It has to be served within that period of four months. If it is not so served, then it expires. In these circumstances, there having been no application for an extension of time, there having been no other application in relation to it, the claim as against the third defendant is dead. Therefore, there is nothing to strike out, so far as the third defendant is concerned. In these circumstances, in my judgment, the application made on behalf of the third defendant simply falls away, and that is the end of the matter so far as the third defendant is concerned.

LATER

1. 1. In this case, Mr Edwards on behalf of the third defendant asks for his costs. He says, “We have had to incur costs. We have instructed counsel. We have come along to make an application to strike out and we would like our costs please.” The problem for the third defendant is that it has not won because it has struck out the claimant’s claim (which is what it wanted to do). It has won simply because the claim form was never served on the defendant in the first place and, its shelf life having expired, there is no longer any claim. It did not know at any time – this is its point of view, of course – that there was any such claim. By the time they knew that there was such a claim, it had already expired so, at that stage, all they needed to do was fold their arms and say, “We have nothing to do with this. You cannot make any order against us, because there is no claim.” But instead of that, they instructed counsel to make an application to strike out, even without filing an acknowledgement of service. In my judgment, in this case, this does not engage the jurisdiction of the court at all to make an award of costs. It falls outside section 51 and Part 44 of the Civil Procedure Rules.

I should say that, even if I were wrong about that, of course, the rules give a discretion to the court as to whether to make a costs order at all and, if so, what costs order to make. In circumstances where the relevant lawyers have entirely failed to spot that there was no claim in the first place because it had expired before they even knew about it and have sought to make an application on a completely false basis for a strike-out which in fact could not be made and could not be dealt with, it seems to me that my discretion would be not to make a costs order in the first place. So I am afraid, Mr Edwards, you win but you do not get your costs.