SERVICE OF THE CLAIM FORM: AMBIGUITY IN DEFENDANT’S INSTRUCTIONS LED TO A (VERY RARE) CASE OF A CLAIMANT SUCCEEDING ON CPR 6.15

In London Fluid System Technologies Ltd & Ors, R (On the Application Of) v HM Revenue and Customs [2023] EWHC 2206 (Admin) Mrs Justice Foster made an order under CPR 6.15 when the claimants had mistakenly served the defendant at the wrong address.  This is a rare example of the power being exercised. It arose because a press release from the defendants made the position as to service ambiguous and the claimants’ solicitor misunderstood the situation.  Although the claimants’ solicitor was wrong in his view the approach he took was wholly understandable.  This led to the court making an order declaring service to be valid.

“… Carr LJ also said in Good Law Project, service of the claim form requires the utmost diligence and care to ensure that the relevant procedural rules are properly complied with (at paragraph [63]). By the same token, in my judgement, where instructions are purported to be given, especially new instructions, regarding an important litigation step, they must be clear, logical, unequivocal and readily understood.”

 

THE CASE

The claimants sought judicial review of the construction of a Revenue Scheme.   They issued proceedings and served these directly on the relevant solicitors at the HMRC.   This service took place because of a press release that HRMC had sent it.  This could be construed as meaning that service of the claim form could take place of the relevant solicitor rather than the standard address for service.   However the judge held that the claimants’ solicitors construction was wrong. Nevertheless it was appropriate, on the very particular facts of this case, for the court to exercise its discretion under CPR 6.15.

CPR 6.15.

Service of the claim form by an alternative method or at an alternative place

6.15

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, the court may 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.

THE JUDGMENT ON THE BACKGROUND TO SERVICE: THE AMBIGUOUS PRESS RELEASE

15. By letters dated 10 December 2021 and 17 December 2021 HMRC reached certain conclusions concerning the substantive issues in the case and communicated them to the Claimants’ solicitor Mr Levy. On the 21 February 2022 he sent a single letter before claim in two separate sets of proceedings challenging those conclusions in both cases to the preactionletters@hmrc.co.uk email address at HMRC. On 3 March 2022 Mr Gabbitas of HMRC responded by email agreeing HMRC would not object to proceedings being initiated for both companies in England and Wales, and he served a single PAP Letter response on 7 March, by email.

 

    1. The 7 March response included a rejection of the taxpayers’ substantive claim. It was headed with an HMRC postal address, (as set out below) and had Mr Gabbitas of HMRC’s email address at the top. It indicated he was the solicitor at HMRC to whom the proceedings had been assigned. A section of the letter provided thus:

 

2. The Defendants

2.1. HM Revenue and Customs (“HMRC”) is an authorised government department within the meaning of s17 of the Crown Proceedings Act 1947. In accordance with the list of authorised government departments published by the Minister for the Civil Service pursuant to those provisions, HMRC’s address for service is as follows:

General Counsel and Solicitor to Her Majesty’s Revenue and Customs

HM Revenue and Customs

14 Westfield Avenue

Stratford

London E20 1HZ

2.2. Currently HMRC accepts service by electronic means where this is effected in accordance with guidance published online at:

 

https://www.gov.uk/government/news/hmrc-to-accept-service-of-legal-proceedings-by-email.

2.3. All correspondence in respect of this matter should be sent for the attention of the Strategic Litigation Team and marked with the references set out below.

3. Reference Details

3.1. Your matter is being dealt with by Sean Gabbitas. The references are LIT-11255-C-1 and LIT-11247-C-1.

    1. Thereafter, the Claimants’ solicitor served the relevant sealed claim forms upon Mr Gabbitas at the email address given at the top of the letter, and also via the SDES electronic document transfer system and understood, until the day the Acknowledgement of Service was served (after an HMRC request for extension of time to do so) that service had been correctly effected.

 

    1. Put shortly, the Claimants’ solicitor understood that he was effecting service of the claims in a manner acceptable to HMRC, and consistent with his understanding of HMRC’s Press Release, by serving by email the claim forms on the address of the HMRC solicitor who had already been allocated to the case. HMRC do not dispute that they received the materials by email but state that the forms ought in fact, to have been sent to a different email address namely newproceedings@hmrc.gov.uk.

 

    1. The document at the end of the link which Mr Gabbitas gave was as follows:

 

[The relative font sizes and layout has been maintained where possible].

News Story

HMRC to accept service of legal proceedings by email

The service of new legal proceedings and pre-action letters on HMRC should be via email during the coronavirus (COVID-19) pandemic.

From: HM Revenue & Customs (/government/organisations/hm-revenue-customs)

 

Published

9 April 2020

Last updated

25 September 2020 —

 

Due to coronavirus (COVID-19), HM Revenue and Customs (HMRC) has requested that, where possible, new legal proceedings and pre-action letters should be served via email rather than by post.

This is to ensure that, during the pandemic, we can protect our staff by reducing the handling of paper documents where possible.

For new legal proceedings

New legal proceedings in England and Wales which are required to be served on the Solicitor for HMRC can be sent by email to newproceedings@hmrc.gov.uk.

Pre-action letters

Any correspondence which is required to be sent to the Solicitor for HMRC in compliance with any pre-action protocol to the Civil Procedure Rules, including the Pre-Action Protocol for Judicial Review, can be sent by email to preactionletters@hmrc.gov.uk.

Unless you are requested to do so, please do not send hard copy duplicates.

Attachments

If you are including attachments with your email, please ensure they:

 

      • are in a common format such as PDF or MS Word

 

 

      • do not exceed 25mb (in total)

 

If you are likely to exceed the 25mb limit, please split the contents into smaller emails. If this is not practical, you should serve the principal documents (such as the claim form and particulars of claim) and ask HMRC to contact you to make alternative arrangements to serve the remaining documents.

Employment law claims

Please note that the service of employment law claims on HMRC, and associated documentation, must be sent to expertadviceservice@hmrc.gov.uk.

Other correspondence

These email addresses are for the service of new proceedings and pre-action letters only. They should not be used if you want to:

 

      • request a review of a tax decision by HMRC – for this please follow the guidance on the GOV.UK page Disagree with a tax decision (https://www.gov.uk/tax-appeals/decision)

 

 

      • appeal to the First-tier Tribunal (Tax Chamber) – for this, please refer to the guidance on the GOV.UK page Appeal to the tax tribunal (https://www.gov.uk/tax-tribunal)

 

Any other correspondence sent to these email addresses will be deleted unread.

For all proceedings (including in the Supreme Court) an HMRC lawyer will be allocated the case and all subsequent service should be effected on their, or any nominated successor’s, HMRC email address.

If you need to contact HMRC with a general query about your tax position, please see Contact HMRC (https://www.gov.uk/contact-hmrc).

Published 9 April 2020

Last updated 25 September 2020

Published 9 April 2020

Last updated 25 September 2020 + show all updates

1. 25 September 2020 Added new section about where to send employment law claims on HMRC.

2. 16 April 2020 Added information to ‘Other correspondence’ section to make more clear.

3. 9 April 2020 First published.

 

THE JUDGE’S FINDINGS

The judge found that the new proceedings had not been properly served. However the press release was ambiguous and it was understandable why the claimants’ solicitor took the view he did.

“CONSIDERATION
    1. The Claimants’ first argument is that the meaning of the Press Release is such that good service was effected in this case. Accordingly, turning first to the meaning of the policy document and the question, were the Claim Forms properly served? I have concluded that the documents were not properly served.
    1. However, I say at once I am clear that the provisions of CPR 6.15 must be applied so as to direct that good service took place in this case in respect of both claims. In my judgement this is a clear case for the exercise of that jurisdiction.
    1. I have concluded that there is an available reading of the policy document, which is consistent with what Mr Gabbitas contends; accordingly I cannot say that Mr Levy did effect service according to the Press Release. However, there are a number of matters which in my judgement make the interpretation placed upon the Press Release by Mr Levy and, obviously, a significant number of other HMRC solicitors, entirely understandable. The language used to convey vital meaning, namely that service may be effected only at the new proceedings email is disappointing. The Press Release is not without ambiguity, and particularly in light of Mr Levy’s experience of its interpretation by HMRC, lends itself to an alternative reading consistently with his own understanding.
    1. I have no doubt that the intention behind the promulgation of the new policy document regarding service in the pandemic was a well-intentioned step taken in very pressured times by HMRC to meet the difficulties presented by the onset of the pandemic. Nonetheless, as I have indicated, and possibly because of the circumstances under which it was drafted, including as Mr Gabbitas helpfully indicated during the hearing, input by numerous people to the one document, this policy as drafted was in my judgement at best ambiguous.
    1. As Carr LJ also said in Good Law Project, service of the claim form requires the utmost diligence and care to ensure that the relevant procedural rules are properly complied with (at paragraph [63]). By the same token, in my judgement, where instructions are purported to be given, especially new instructions, regarding an important litigation step, they must be clear, logical, unequivocal and readily understood.
    1. The reasons given by Mr Levy for his reading to the effect that where a solicitor has been allocated to a case, that solicitor is the proper recipient of service, are compelling. HMRC’s case is that the document has effect as a strict rule of procedure. The language of the Press Release did not assist the reader to understand that although the word “can” was used, it in truth meant “must”. Further, the criticisms made by Mr Levy (which I do not repeat here) are well made. I accept, however, from Mr Gabbitas that HMRC intended that all new proceedings should be served upon the new proceedings email, essentially for the reasons given in respect of the government legal service position in Good Law Project, repeated to an extent by Mr Gabbitas. The guidance ought, in the present case, to have stated words to the effect (without intending to draft) of “if you choose to effect service by email, rather than by hardcopy, it is essential that you serve the new proceedings email with the materials first. This is so, whether or not an HMRC solicitor has already been assigned to the case“.
    1. Further, I do not accept that the SDES system comes within the practice direction description. PD 6A 4.1 requirements have not been complied with insofar as the Press Release does not suggest that the claim form may also be served in this manner – it refers to attachments. However, it does come quite close to suggesting that service of everything that requires to be served, including the claim form, may be effected by this route. In similar vein, it would help the reader for a simple statement to be included that the claim form may not be served by means of the SDES. In my judgement, and given the wide variety of materials to which this Press Release might apply, a note to the effect that parties should consult PD 6A, whilst not essential, would assist.
    1. As I have suggested, the strongest part of Mr Levy’s argument is regarding the “other correspondence” section of the guidance. He is a seasoned practitioner, with knowledge in addition of HMRC and yet, he, and others, misunderstood the guidance. That section could perhaps helpfully be redrafted. In the context of the present case, Mr Levy’s experience in his other three judicial reviews is highly significant and would necessarily inform his reading of correspondence and reinforce his understanding of the intended meaning of the Press Release.
  1. I am not persuaded that this is a case similar to Tinkler. I do not consider that it is possible to spell out the requisite kind of “crossing the line” or a responsibility for a common assumption on the part of HMRC. Mr Levy was relying upon his own interpretation, that was fortified by his previous experience and those matters, (particularly since the fortification came from HMRC) rather feed into the balance when the court decides what it must do. In the context of service of a Claim Form, and in the present case where the Acknowledgement of Service correspondence is central to the submission, in my view it does not reach the level of the estoppel by convention cases. I acknowledge that a claimant does not need to rely solely on a defendant’s affirmation of or subscription to a common assumption, as opposed to the claimant relying upon its own mistaken assumption. However, I do not believe I can spell out of these facts a sufficient Defendant’s affirmation. In the present context it is the behaviour and potential affirmation of Mr Gabbitas that is an issue and which I do not find to be present. The point, however, is nonetheless relevant and must be taken into account in the overall balance.”

EXERCISE OF THE CPR 6.15 DISCRETION

The ambiguity in the press release was a good ground for the court to exercise its discretion under CPR 6.15.

    1. Accordingly, I exercise the jurisdiction under CPR 6.15 by reference to Barton v Wright Hassall LLP and by reference to the analysis of the relevant factors to be considered when considering the exercise of that jurisdiction, as set out in Good Law Project.
    1. Dealing with the matters referred to by Carr LJ in turn:
(1) whether the Claimant took reasonable steps to effect service in accordance with the rules; Answer: In the context of the wording of the Press Release and Mr Levy’s understanding of its meaning, particularly in light of his experience with HMRC, yes he did take reasonable steps to effect what he reasonably understood to be required in accordance with the rules. This case was not a careless slip – up case. This is not a solicitor who did not care to inform himself, or was careless and slipshod. This solicitor took care within the system which he understood to be operating and which he had previously operated as he understood it successfully and consistently with HMRC’s direction, after the introduction of the email service policy. He believed he had effected service in accordance with the “rules”. In my judgement that belief was not unreasonable. Furthermore, it was suggested at one stage by HMRC, that if in doubt, Mr Levy ought to have asked for clarification. The point is, Mr Levy was not in doubt, and I have held that his absence of doubt was in all the circumstances, reasonable.
(2) whether the Defendant/his solicitor was aware of the contents of the claim form at the time when it expired; Answer: Overwhelmingly, the answer to this question is yes. There were numerous occasions on which the relevant materials reached the relevant solicitor. The purposes of service had been plainly achieved, and the case was progressing, with concessions made as to a joint acknowledgement of service, and so forth with core bundles served and no doubt considered. There is no question but that HMRC were made aware on the several occasions on which the materials were provided to them, and were able to take such steps as they believed appropriate in the proceedings – indeed acted as if those proceedings were properly brought until the last minute.
(3) the prejudice if any the Defendant would suffer by retrospective validation of non-compliant service bearing in mind what he knew about its contents; Answer: Necessarily, as in all cases the serious prejudice of losing a limitation period will fall upon the defendant. I do not underestimate the prejudice caused but, however, I balance it against the other circumstances including in particular the apparent acquiescence of HMRC in asking for extra time in which to acknowledge service, and the absence of operative carelessness on the part of Mr Levy (the later miss-filing to the GLD email address is irrelevant to the central issue here). As stated this was not a “careless mistake” case. The solicitor for HMRC here knew clearly, and early, what the issues were and what case he had to meet. Acknowledging the presence of the limitation prejudice, there is no other detriment to HMRC in allowing service by the alternative means of direct email.
    1. I bear in mind also that the Court should look to see whether there has been any impediment imposed upon compliance with good service by the Defendant. In light of my conclusions about the drafting of the Press Release, my answer is there has been. The impediment is the difficulty with the Press Release, and the reassurance to Mr Levy through the position of other HMRC solicitors – indeed all those with whom he had come into contact in his previous relevant judicial reviews.
    1. As stated by Carr LJ:
(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;
I am clear that there is a good reason so to order, namely that in the present context, balancing all the factors, justice requires that the claim forms be treated as properly served, for the reasons I have given.
    1. Further, I have considered carefully:
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 r 6.15(2);
In this case, for all the reasons given, there are numerous other factors playing into the good reasons which support this order.
    1. Lastly, the manner in which service is effected is also important. No issue arises here with uncertainty over time or date, or the content of service. The service of the claim form was upon Mr Gabbitas personally, the documents were also made available through an approved format. I am prepared to decide that good service took place on 17 March 2022 in respect of LFST, when it was served personally by email.
    1. In my judgement the facts of this case are highly unusual and unlikely, to occur again, particularly if some fairly simple steps at amendment are made to the Press Release. This is of course on the assumption that it is still in operation in similar form.
    1. I reiterate, the court sympathises with those placed in the difficult position of seeking to keep the wheels of justice turning at such a pressured and uncertain time as early April 2020. I mean no criticism of the individuals involved, and in particular, none of Mr Gabbitas who was most helpful to the court with evidence and information. This was a case in which HMRC felt assistance would be helpful and I have recorded there were a number of other instances in which the guidance document had been differently understood from the meaning which HMRC have said it intended it should bear.
  1. I have accepted that it can bear that intended meaning, but have indicated ways in which that meaning could and should be made clearer. Accordingly this application is granted, and I determine that good service took place on 9 March 2022, and on 17 March 2022 in respect of these claims.