FIRST CLAIM FORM CASE OF 2024: CLAIMANT COMES TO GRIEF WHEN THE DEFENDANT WAS SERVED BY THE WRONG METHOD: NO RELIEF AVAILABLE

It took until the 4th January for the first case in relation to service of the claim form to come to light. In Chehaib v King’s College Hospital NHS Foundation Trust & Ors [2024] EWHC 2 (KB) Master Stevens dismissed all the claimant’s applications for relief following a mistake in relation to service. It is a case where the claimant served a solicitor by email when there had been specific correspondence stating that service should take place by post.   The claimant’s submissions that they should be granted relief from sanctions were not accepted. CPR 3.9 and 3.10 have very little application in cases relating to service of the claim form. The (belated) application for an order that the court deem service to be appropriate was also unsuccessful.  It is a reminder, as 2024 starts, that service of the claim form remains a major area of danger.

WEBINAR ON SERVICE OF THE CLAIM FORM

This case is an opportune time to give a reminder of the webinar on the 5th February 2023 “Service of the Claim Form Cases: The last 14 months”.

The webinar looks at those decisions about the service of the claim form since October 2022.  There are a large number of cases where claimants have fallen foul of the rules and failed to serve properly, usually with dire consequences. It also highlights those cases where claimants have been unsuccessful.  It looks at the practical consequences of the decisions and the steps that lawyers can take to avoid being involved in claim form issues.

Booking details are available here.

THE CASE

The claimant issued proceedings against three defendants alleging clinical negligence.  There were agreed extensions of time and the claimant served.  The solicitors for the second defendant wrote in advance of service stating that service of the claim form should not take place by email but by post.  The first and third defendants were content for service to be by email.

THE MISTAKE AS TO SERVICE

When the claimant served proceedings the second defendant’s letter was overlooked and service took place by email.  The second defendant’s acknowledgement of service stated that it intended to dispute jurisdiction. The claimant then attempted to serve by post (however this was now outside the time for service).

THE CLAIMANT’S APPLICATION

The claimant applied for relief from sanctions under CPR 3.9. Later 3.10 was mentioned and, at the hearing itself, the claimant sought relief under CPR 6.15 (2).

1. The claimant’s application notice was slightly curiously phrased as a request for “an order granting relief from sanctions” and for “a declaration that the amended Claim Form… has been validly served on all Defendants“. The witness statement in support sought relief pursuant to CPR 3.9 suggesting that, without trivialising the errors, the breach was not serious or significant because there was no prejudice to the second defendant and the claimant had always communicated with them by e-mail; it was suggested the breach could therefore be regarded as technical in its nature. The error was explained and it was said that it would be unjust in all the circumstances of the case not to grant relief because the breach had not substantively impacted the litigation, no hearing dates had been imperilled, the second defendant had always been aware that proceedings had been instigated and had consented to extensions of time for service, and finally that it “would be a disproportionately punitive sanction and it would have the effect of granting the defendants a windfall” if relief was not granted. However, the skeleton argument filed by counsel sought relief pursuant to CPR 3.10 in the alternative. On the day of the hearing itself, and having reviewed the second defendant’s skeleton argument, the claimant contended for a third alternative route to remedy pursuant to CPR 6.15(2); the second defendant confirmed that they did not object to me considering that further provision.

THE SECOND DEFENDANT’S APPLICATION

1. 1. In short, the second defendant argued that the hearing before me, and the proceedings against them, are now null and void as the claim form expired before proper service. As such they maintained that I should give “serious consideration” to making that finding and terminating the rest of the hearing. They questioned the purpose of CPR 11, and the relevance of the choice of tick boxes on the acknowledgment of service form, if a jurisdiction challenge could not be brought in a case such as this.

1. 1. The claimant argued quite simply that if it was good law that failure to validly serve proceedings prior to expiry of the validity of the claim form rendered the proceedings null and void, the point would have been taken in the plethora of cases within my authorities bundle where similar problems had arisen with service of a claim form.

1. Having very recently read the judgment in Pitalia & Anor v NHS England [2023] EWCA Civ 657, which was not contained within the hearing bundle, I have regard to the judgment of Bean LJ at [21] who reviewed earlier authority and cited from it that it is incorrect to assume “that there is an analogy between the expiry of a claim form and the death of a living creature. Plainly in some circumstances an expired claim form can be revived”. Not only am I bound by that decision, but I also believe it would be an oversimplistic view of CPR 11 to suggest that it stands alone or can be considered in isolation from CPR parts 6 and 7; the rules are intended to be viewed holistically as they form an integrated code of procedure. I also find force in the claimant’s submission that were it otherwise, such an apparently simple solution, if the correct legal one, would have already found its way into the multiple prior judgments on the important topic of failure to serve a claim form correctly. Accordingly, I dismiss that part of the second defendant’s application and will say no more about it. The second part of their application is better considered once I have determined the claimant’s application.

THE CLAIMANT’S APPLICATIONS FOR RELIEF

The claimant argued that relief should be granted under CPR 3.9 or 3.10, alternatively under 6.15(2). 6.15 (2) states:-

(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 MASTER’S FINDINGS

CPR 3.9 DOES NOT HELP IN SERVICE OF THE CLAIM FORM CASES

Analysis & Conclusions

Under CPR 3.9

1. 1. I have not been referred to any authority where rule 3.9 has been successfully deployed to achieve relief where a claim form has not been validly served under the rules. The claimant has sought to reassure me that I have the necessary discretion, by adopting a somewhat novel submission that there is no rule governing the situation where a permitted route for service has been adopted in the wrong circumstances, hence they argue I am free to rely on my general powers under rule 3.9.

1. 1. The second defendant suggested this submission, based on semantics, simply does not hold water. In summary, their view is that as the claim form has expired it can only be revived by an application using the specific powers set out in CPR 7.6 (3), which is not the application before me, or remedied under rule 6.15(2), very belatedly adopted as a potentially viable route to relief by the claimant the day prior to the hearing.

1. 1. My review of the materials within the authorities’ bundle set out above, demonstrates that there have been many situations in the past where permitted methods of service have been used in the wrong circumstances, causing a total failure of service. The correct and consistent approach of the courts has been to identify the facts that led to things going wrong, and then to select the appropriate rule under which a remedy could be considered, but reliance upon CPR 3.9 has never been validated as the correct approach. It was rejected by the Court of Appeal in Kaur in 2001, and by the High Court in both Piepenbrock in 2020 and in Boxwood in 2021. My inescapable conclusion is that CPR 3.9 is not the appropriate rule to deploy in the circumstances of this case.

1. 1. Even if I had applied the Denton test, it would not have produced a happy outcome for the claimant. There is absolutely no doubt that the error in failing to comply with the practice direction, in the context of the “bright line rule” highlighting the importance of correctly serving originating proceedings, is a serious and significant breach.

1. 1. Under stage 2 of the test, there is no good reason for the mistake made, and no proper explanation either. The witness evidence filed in support of the claimant’s application did not amount to the “full account” that O’Farrell J considered she had received in Boxwood at [56]. The claimant’s solicitor’s statement at [11] simply recorded “Unfortunately, the request was overlooked”. The “request” was that of the second defendant’s solicitor that service should not be made via e-mail, but by post to their offices in Guildford.

1. 1. Under stage 3, considering all the circumstances of the case, I accept all the submissions of the second defendant as set out at [67] above.

CPR 3.10 DID NOT HELP EITHER

Under CPR 3.10

1. 1. This provision has been relied upon in at least 10 previous cases brought to my attention within the authorities’ bundle, where service of originating process has failed, the majority of them being finally determined at Court of Appeal level or above. However, only 3 of the authorities brought to my attention were successful in rescuing claim forms invalidly served, using the powers available to the court under rule 3.10. The notes in the White Book at 3.10.1 make plain that “it is now firmly established that this general power cannot be used to correct or waive errors such as the late service or defective service of a claim form (see para 3.10.4)“. That sentiment resonates well with the recent very clear guidance given by the Court of Appeal in Ideal Shopping. I do not accept the claimant’s submissions at [57] that it was irrelevant on the facts; the broader principles are applicable and speak for themselves and there is nothing meritorious about the facts in the case before me to distinguish it from the mistake made in Ideal Shopping. At [146] of Ideal Shopping it was held that “the general provision in Rule 3.10 cannot be used to override a specific provision, here rule 6.15 or rule 6.16. The appellants could not satisfy the “good reason” or “exceptional circumstances” criteria under those two rules and they are not permitted to use rule 3.10 to bypass the requirements of those specific provisions. Likewise, since the appellants could not have satisfied condition (b) of rule 7.6(3), as they could not have shown that they had taken all reasonable steps to comply with rule 7.5 or that they had been unable to do so, they cannot be permitted to use rule 3.10 to bypass the requirements of rule 7.6 (3)“.

1. 1. The claimant has been keen to distinguish other cases in the authorities bundle too where the courts have ruled against the applicability of CPR 3.10, as the means to perfect service, based on their factual context, which was highlighted as so important to the exercise of the discretion to grant relief by Lord Sumption in Barton. I have 2 chief difficulties with this approach. The first is that I find it extremely hard to identify any significant difference in the factual matrix underlying the applications in both Barton and Piepenbrock with the situation before me. Both cases concerned wrongful use of e-mail to serve proceedings on nominated solicitors for the defendant. The fact that the claimant was a litigant in person in Barton and still the relief was not given, underlines for me the importance which the courts place on both the need to demonstrate reasonable steps being taken to effect service of originating process, and the very great care which the senior courts have taken not to deprive a defendant of an accrued limitation defence. I have previously referenced both Carr LJ (as she then was), in the Good Law case, and Flaux C in Ideal Shopping, ruling that the consequences of carelessness by a solicitor in attempting to effect good service of a claim, may well lead to harsh results for their client.

1. 1. My second difficulty is that the three authorities relied upon by the claimant where CPR 3.10 was successfully relied upon to remedy defects in service had totally different factual matrices to the circumstances being considered in this application. In Steele a correct, and in-time application for an extension to serve particulars of claim had omitted to reference that an extension was also required for the claim form. That situation contrasts with the one before me where no application for relief was made until after the validity of the claim form had expired. Furthermore, it was not a situation where a permitted method of service had been used in the wrong circumstances, unlike Barton and Piepenbrock where that was the precise factual scenario and the court found against the claimant. Whilst it may have been a mistake not governed by a rule that is simply not enough to displace my conclusion that the facts are too dissimilar to warrant the case as one that I should follow to grant relief, when the other authorities all point in a different direction on similar facts.

1. 1. In Phillips the problem corrected under rule 3.10 related to an error by Swiss authorities to serve the correct claim form supplied to it by the Foreign Process section of the High Court. They had served only the local language translated copy of the claim form and not the original sealed claim form in English. The defendant did not submit they had suffered any prejudice as a result, unlike in the dispute before me. Thus, the lack of relevance of this authority is plain and, furthermore, the practice direction with which I am concerned relates solely to method of service of the claim form, not what was actually served.

1. 1. Whilst nominally seeking to rely on the High Court decision in Integral, the claimant acknowledged that it was not concerned with service of a claim form for which more stringent measures apply.

1. 1. Reviewing other authorities in the bundle I also do not find any assistance in the decision of the Deputy High Court Judge in the Bank of Baroda or consider it appropriate as a basis for me to exercise my discretion as that judgment made plain that CPR 3.10 was of less use to correct a step where the step taken was not permitted by the rules at all. The claimant’s application before me is based on the fact they have taken a permitted step in the wrong circumstances. In any event, Nicklin J in the more recent 2020 decision in Piepenbrock, held at [81] that it was appropriate not to follow that authority when considering a similar dilemma to the one I face, as the remarks regarding use of CPR 3.10 were obiter, preceding the more authoritative decision in Barton.

1. 1. Likewise, the 2020 decision in Dory, only sanctioned the use of rule 3.10 to perfect service of an unsealed claim form, because it was determined that there was no prejudice to the defendant, such as loss of a limitation defence, which is not the position in the dispute before me.

1. Whilst the claimant may be correct that there is no actual rule governing the validation of service ostensibly by a permitted route but in contravention of the practice direction, nor a rule prohibiting the validation of service in such circumstances, there does not need to be given the wealth of case law authority directing how matters should be dealt with in those circumstances. Having taken account of all the preceding points, there is no usefulness in considering a higher threshold for the relief sought, as contended for by the claimant, when the suitability of CPR 3.10 on the facts of this case itself is not established.

CPR 6.15 (2) COULD NOT BE USED

1. 1. I note that there was no formal application before me to consider relief using the court’s powers under this rule; it was a last-ditch attempt by the claimant to save their existing claim, if their primary and secondary arguments failed. Nonetheless, the case law is clear as to how I should approach my determination, with 2 judgments from the Supreme Court amply specifying the considerations that I should have in mind. There is no disagreement between the parties as to the relevant factors, nor that the claimant could not satisfy the court they had taken reasonable steps to effect service. The main battleground between them is an argument about the impact of the second defendant’s undisputed awareness of the claim and whether it would be just to deprive the second defendant of a limitation defence. I find it surprising that the claimant submitted that the second defendant had not complained of any prejudice as that is not borne out by the submissions which were made. In addition, the numerous courts that have examined the issue of what to do where service has not been perfected prior to expiry of the limitation period, have been keen to express the view that rule 6.15 should not be used to override a statutory limitation period, and that the defendant is under no obligation whatsoever to assist the claimant who has, for whatever reason, missed the deadline.

1. 1. The only case before me where rule 6.15 had come to the aid of a claimant after the expiry of limitation was Abela, the factual circumstances of which could not have been more different to those of the claimant. By way of brief recap of the background which I set out at [18], the defendant had been obstructive when the claimant had sought to engage them about an address for service, and there was no evidence before the court that the claimant could have discovered the true address of the defendant. In those circumstances, described by the court as necessarily “exceptional” to trigger the relief, it was ruled that there was good reason to grant it. In Barton, Lord Sumption had made it plain that there did not need to be exceptional circumstances, but that there still needed to be a good reason why service had not been effected in accordance with the rules, on the facts of the case, to permit alternative service under rule 6.15.

1. In this case there is certainly nothing exceptional about the reasons why service was not perfected. Furthermore, I cannot find that there was a “good reason” either; the claimant’s solicitor’s witness statement does not assist me in this regard. There was an error in failing to check the permissible method of service, right at the end of the period of validity of the claim form. There was no apparent good reason for not checking properly and it is unclear why service had not been attempted rather sooner, which would have allowed a margin for any error to be corrected. I accept the submissions of the second defendant as recorded above, as to why it would be inappropriate to grant the relief. I repeat and adopt the observations of Underhill LJ in Good Law, as set out at [32], namely, “it is important to keep in mind the real issue in an application under CPR 6.15(2). A claimant is asking for a retrospective validation of non-compliant service in order to circumvent a limitation defence. Quite trivial errors can sometimes lead to limitation deadlines being missed. That can be harsh, and may be characterised as technical; but it is recognised as a necessary consequence of a limitation regime“.

IT MAY BE TIME FOR A CHANGE…

1. 1. Having carefully considered the rules and copious judicial authority examining what should happen when the rules on service of originating process are not fully complied with, I conclude that I must dismiss the claimant’s applications, both as made formally under rule 3.9, and as contended for orally under 3.10 and 6.15. The rules themselves cannot possibly provide for every eventuality in litigation but any so-called gap in them has been amply filled by case law. I agree with the second defendant that seeking to distinguish the situation the claimant finds themselves in under the rules, of having used a permitted method of service but in the wrong circumstances, was, in the end, an exercise in semantics rather than one of substance, albeit that I recognise the effort put into the ingenuity of the approach.

1. 1. I am plainly not the first judge to have some disquiet about the operation of the current rules, as now interpreted judicially, for a claimant facing this particular predicament, where a defendant has been fully aware of the claim before the expiry of the validity of the claim form, and where service has been attempted prior to expiry, but there are not many “bright line rules”, and as such they must be observed with great care, both by litigants in person and legal representatives.

1. Without in any way seeking to disturb a “bright line rule“, I do question whether the time may be right, subject to other demands on the agenda, for a narrow review of practice direction 6A, by the Civil Procedure Rules Committee, focussed on the use of email for service of originating process on solicitors’ firms. I mention this quite simply due to the significant changes in law firm practice management since the current rules were drafted and the Supreme Court considered them. The Covid pandemic has accelerated the evolution of electronic systems and dramatically changed working practices. Furthermore, civil litigation policy is developing an increasing emphasis on digitisation which is altering how parties conduct litigation. It is well understood that when Lord Sumption discussed the risks associated with monitoring e-mail addresses in a busy law firm in Barton, there was a clear rationale for the practice direction to mandate that service of a claim form by e-mail was invalid, absent express consent of the defendant’s solicitor. Since the pandemic, and the rise in remote working, most if not all law firms have had to consider new risk management procedures, out of necessity, for dealing with receipt of post, including email, when no fee earners are physically present in the office. In the very narrow circumstances where a prospective party has already been corresponding with their opponent’s nominated solicitor by e-mail on a particular claim and pursuant to a pre-action protocol, it is not hard to imagine that there will now be, or should be, a procedure for ensuring that all communications relating to that matter, served to the same e-mail address will be monitored. In such specific circumstances, where service is attempted prior to expiry of the validity of the claim form, the practice direction could be considered ripe for review. These comments about the potential for refreshing the practice direction naturally cannot impact my decision in this case which has to be based on both my factual evaluation and the existing rules and practice direction (the correct interpretation of the latter not having been in issue) and as interpreted by higher authority that binds me.