THIRD CLAIM FORM CASE OF THE YEAR: FAILURE TO SERVE A SEALED CLAIM FORM, SERVING BY EMAIL WITHOUT THE DEFENDANTS’ CONSENT: IT ENDS UP BADLY FOR THE CLAIMANT

I am grateful to barrister Alicia Tew for sending me a copy of the judgment of HHJ Karen Walden-Smith in Harper -v- Bamber & Lewis (Cambridge County Court – copy of which is available here judgment in Bamber v Harper ).  It is another tale of woe in relation to service of the claim form.  The claimant’s solicitors lost the original claim forms and attempted to serve unsealed forms.  Further the claimant served by email without obtaining the defendants’ consent in advance.   The claimant may have thought they had a reprieve when a favourable order was obtained from the District Judge. However that order was overturned on appeal.

“… the unsealed claim form was not accurate as it limits the claim to £15,000 whereas the claim is currently valued as being at least £400,000.     In those circumstances, it is in my judgment an error to find that the defendants were aware of the contents of the claim form and that the weight in favour of the claimant is merely “diminished” because the value was wrong.     It is a fundamental issue for the defendant to know the value of the claim being brought and the failure to accurately reflect the value of the claim in the unsealed claim form is a fundamental issue. “

WEBINAR ON SERVICE OF THE CLAIM FORM: WEBINAR 5th FEBRUARY 2024

The fact that this is the third case about service of the claim form on the blog this year says much about how common an issue this is.  I am reviewing the cases on service of the claim form in a webinar on the 5th February 2024 “Service of the claim for cases: The last 14 months” .  Booking details are available here. 

THE CASE

The claimant brought an action for clinical negligence.  He issued against four defendants but only proceeded against the First and Fourth defendants. The claim form limited the claim to £15,000 but the schedule of loss put past loss alone at £400,000.   Unsealed claim forms were served by email.

ERRORS OF SERVICE BY THE CLAIMANT

The claimant accepted that service of the claim form was defective.  The claim form served was unsealed and the Claimant purported to serve by email, without having gained the agreement of the defendants.

THE ORDER OF THE DISTRICT JUDGE

The defendants made an application under CPR 11 that the court did not have jurisdiction.  The claimant made an application under CPR 6.15 for an order that the court retrospectively validate the claimant’s attempts to serve the claim.   This order was granted by the District Judge.

THE DEFENDANT’S SUCCESSFUL APPEAL TO THE CIRCUIT JUDGE

The defendants’ appeal against the District Judge’s order was allowed for a number of reasons.

Ground 1.1: The Judge’s evaluation that there was a “good reason” to grant the CPR6.15 application constituted a serious procedural irregularity, or was wrong in law and/or fact/The Judge failed to apply the correct test for determination of applications under CPR 6.15

1. Ground 1.1. is that the Judge failed to apply the correct legal test for the determination of applications under CPR 6.15. It is averred by the Defendants that while the Judge referred to the judgment of Carr LJ in The Good Law Project,  following Barton, he did not apply the test properly.
2. In determining whether there was “good reason” to order that there had been good service the main relevant factors (none being decisive in themselves and each having the weight placed upon them dependant upon the circumstances of the case) are: whether the claimant took reasonable steps to effect service in accordance with the rules; whether the defendant was aware of the contents of the claim form; what, if any, prejudice the defendant would suffer.
3. The District Judge found that the claimant had not taken reasonable steps to effect service, finding it more likely than not that the sealed copies of the claim form had been received from the court in early August 2018 and that the claimant’s solicitors had mislaid them. The solicitors had further failed to obtain an additional sealed claim form even though they had a two year period in which to do so.   The solicitors further failed to instruct their skeleton staff to look for the sealed claim form prior to service in July 2020 (a time of covid restrictions).   However, while the District Judge found that the service by email in circumstances created by the covid-19 pandemic was reasonable, they had failed to obtain the defendant or the defendant’s solicitors’ consent to service in that way – they had simply written on 13 July 2020 to say “Please see attached” where the claim form was not attached; and “If you are not able to accept service by email, please let me know by return.”  On receiving the fourth defendant’s solicitors’ response that the claim form was not attached, an unsealed and undated claim form was emailed on 15 July 2020 to which the defendant’s solicitors responded “I acknowledge receipt of the Claim Form but note that this not sealed or include the date of issue/claim number- is that right?  Is there a sealed copy of the Claim Form available?” There was no response to that query.    The claimant’s solicitors could not properly have believed that they had effected service in July 2020 – not only because they had served in a manner (email) not expressly agreed to by the defendants but, much more significantly, had endeavoured to serve an unsealed copy of the claim form which is not a valid claim form.
4. I concur with the District Judge’s determination that it was reasonable, in the circumstances of the pandemic, to seek to effect service of the claim form by email. The defendant’s solicitors were asked if they would not accept service by email to let the claimant’s solicitors know.     While it is for the claimants to ensure that service could be effected by email and silence cannot be interpreted as agreement, as it is perfectly proper for the defendants to “sit back”,  the fact that the fourth defendant’s solicitors responded both to the letter of 13 July 2020 and the subsequent letter of 15 July 2020 containing the unsealed claim form, it was not unreasonable for the claimant’s solicitors to consider that the fourth defendant was accepting service by email.
5. However, the failure to serve a sealed claim form was entirely the fault of the claimant’s solicitors and a serious matter given the “bright line” needed to determine when time starts to run for the next procedural steps. The District Judge found that the claimant’s solicitors had not taken reasonable steps to effect service in accordance with the rules, a factor which  he concluded “weighed heavily against granting the application”.   He found the claimant’s solicitors to be “guilty of a serious failing” as a consequence of taking “a lax approach to an important procedural step”.   Those difficulties were “at least partly of their own making”.   I cannot see that they were other than entirely responsible.
6. The District Judge then considered the further extensions of time which were consented to and concluding that “all parties appear to be proceeding on the basis that the proceedings would progress with defences being filed.” He concluded that the defendants were aware of the contents of the claim form and that weighed in favour of the claimant’s application under CPR 6.15 being granted.   However, the unsealed claim form was not accurate as it limits the claim to £15,000 whereas the claim is currently valued as being at least £400,000.     In those circumstances, it is in my judgment an error to find that the defendants were aware of the contents of the claim form and that the weight in favour of the claimant is merely “diminished” because the value was wrong.     It is a fundamental issue for the defendant to know the value of the claim being brought and the failure to accurately reflect the value of the claim in the unsealed claim form is a fundamental issue.  
7. Finally, the District Judge considered the prejudice to the defendants if the claim form were to be retrospectively validated and he found that the defendants had failed to demonstrate to the court any significant prejudice to be suffered from retrospective validation of the claim form. He found that the defendants’ representatives had acted “wholly inconsistently” with their position that they had not been served and that it was a factor in favour of granting retrospective validation that the defendants’ limitation defences were not set out with precision.
8. In balancing the various factors, the District Judge concluded that the application ought to be granted, albeit he said that it was a “finely balanced case”. I have come to the conclusion that the District Judge erred, as a matter of law, on the conclusion he reached.   There was no “good reason” to allow the application and, on the basis of the stringent test that applies in order for the appellate court to overturn a decision of the first instance judge, namely that there must be a misapplication of the law and/or a decision reached that no reasonable judge properly directing himself could come to, I conclude that this appeal must be allowed.
9. In this case the District Judge had referred himself to the appropriate guidance in both Good Law Project and Barton v Wright Hassell but he did not follow that guidance appropriately.   This is not a balancing exercise in the same way as the test for whether there ought to be relief from sanction, when the Denton  criteria are applied (in summary, was there a substantial or significant breach; was there a good explanation for the breach; looking at the matter holistically as to whether relief ought to be granted) and yet it does appear that the District Judge undertook an exercise of a similar nature.
10. As Carr LJ said, there does need to be a “bright line” for service of the claim form and in this matter the reason as to why the claimants sought to say that they should have permission to validate retrospectively was that it had taken steps to effect service.   As was found by the District Judge, the claimant had failed to take reasonable steps.  Had it simply been an issue of service by email, then given the circumstances of the pandemic and the solicitors running a “skeleton” staff in the office, then that would have been a different issue.   Here, the fundamental issue – and one entirely of the claimant’s own making – was the failure to serve a sealed claim form.   While no one factor is decisive (and therefore this factor alone could not be determinative as contended for by the appellants) it was fatal in both Good Law Project and Barton and the District Judge identified that it weighed heavily against the application being granted.    The claimant’s solicitors had further failed to comply with an order that had been made on 14 April 2021 giving the claimant additional time to serve the claim form.
11. Having correctly identified this as a matter which weighed heavily against granting the application, as the claimant’s solicitors were guilty of “serious failings” by taking “a lax approach to an important procedural step”, the District Judge thereafter fell into error by failing to attribute to the solicitor’s failure to serve a valid sealed claim form the consequences that he ought to have done.   Rather than following through with his determination in his final conclusion, the District Judge undertook a balancing exercise more akin to determining whether relief against sanction should be granted.   In so doing he was placing too heavy a burden upon the defendants to establish their position when an application under CPR r 6.15 requires the court to be satisfied that there is a “good reason” to permit allowing the alternative service, whether prospectively or retrospectively.  The District Judge found that the claimant’s solicitors had been lax and that there had been serious failings, but failed to give proper weight to the fact that the claim form that was emailed respectively on 13 and 15 July 2020 was unsealed.   He also took the view that that defendants’ solicitors had been acting inconsistently by entering into further agreements and consent orders extending time for service.  In fact that behaviour was consistent with service of the claim form not having been properly served.
12. In my judgment the District Judge erred in finding a “good reason” in the circumstances of this case. This was not a finding that could properly have been made on the evidence.

THE FAILURE TO SERVE A SEALED CLAIM FORM

Ground 1.2 The Judge failed to give any or any adequate weight to unsealed nature of the claim form

33. The claim form that the claimant applied to have validated was unsigned and therefore not a claim form as a matter of law (see Ideal Shopping). While the District Judge acknowledged that in order to validate the claim form it would be necessary to cure two faults with service: the fact that the claim form was served by email when that was not an agreed method of service and that the claim form itself was not sealed and therefore not a valid claim form, he failed to give sufficient weight to the fact that the claim form was unsealed.   The District Judge referred to the covering letter to the unsealed claim form indicating to the defendants that the documents were intended to effect service, but he erred in finding that the letter also indicated why it was an unsealed claim form.  The letter enclosing the claim form did not address the fact that it was unsealed and having found that there were serious failings in losing and/or not adequately searching for and/or obtaining further sealed claim forms, the District Judge then erred in not recognising the significance of the claim form not being sealed. 

34. The failure to serve the sealed claim form meant that the “bright line” was not created. An unsealed claim form creates uncertainty as it is not a claim form in law.

35. In all the circumstances of this case, the District Judge went outside the “generous ambit” allowed for different determinations to be made. The failure to serve a sealed claim form ought to have weighed very heavily against the finding of a “good reason”.  While the District Judge properly recognised that to be the case, he did not then exercise his discretion in accordance with that finding.

ERROR IN RELATION TO FINDINGS ON THE DEFENDANTS’ CONDUCT

42. Upon service of the unsealed claim form in July 2020, the fourth defendant’s solicitors had responded by saying “Is that right?” That, in my judgment, is a clear indication from the defendants to the claimant that the unsealed claim form is not accepted as good service.    In any event, as set out above, it is not for the defendant to tell the claimant how to effect service.  There is no obligation upon the defendant to give positive assistance (see Lord Sumption in Barton) .  As Carr LJ put it in The Good Law Project:

“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 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]”

43. In response to the first letter sent on 13 July 2020, which did not include a copy of the claim form, the fourth defendant’s solicitor pointed out the omission. In response to the second letter sent on 15 July 2020, containing the unsealed copy of the claim form, the fourth defendant’s solicitor commented upon it not being sealed and “nor did it include the date of issue and claim number” as well as asking whether a sealed copy of the claim form was available.  While the District Judge was correct to note that no positive objection had been advanced by either the first or fourth defendant’s representative “about service being inadequate or about the Claimant solicitor’s use of email”, the defendants’ solicitors had absolutely no obligation to do so.

44. The District Judge found that the claimant’s solicitors had “clearly explained the problems that they faced. They had specifically enquired as to whether an unsealed copy would be problematic.   Neither Defendant positively objected, and neither Defendant immediately challenged whether service was effective on that basis.”   The defendants did not have to challenge the service as there was no obligation to give positive assistance to the claimant.  The burden was entirely upon the claimant to ensure that service was conducted in accordance with the rules and the claimant’s solicitors owed a duty to the claimant to ensure that was done.    The fourth defendant’s solicitor had in fact queried whether it was correct that he had been sent an unsealed claim form, a query which was not answered by the claimant.

45. While the District Judge found that all parties were conducting themselves as if the claim form had been served in July 2020, that factual determination runs contrary to the evidence which shows that the parties signed a consent order in January 2021 in order to extend the period of service for the claim form. That consent order would not have been necessary had the parties been working on the basis that the claim form had been properly served.   The District Judge later concluded that the agreement for an extension of time for the service of the particulars of claim and defence was “wholly inconsistent” with the argument that the claim form had not been served.  I disagree with that conclusion.  It is not unusual to prospectively agree deadlines for particulars of claim and defences particularly where, as here, the claim is complicated by there being a large number of prospective defendants (in this case the claim commenced against 11 defendants).    It is not determinative of an acceptance of a particular method of service that a claim form has been purportedly served.

46, The unchallenged evidence from the defendants’ respective representatives was that the claimant’s solicitors requested a consent order to extend time for service of the claim form in January 2021 which resulted in the order approved on 14 April 2021, sealed on 23 April 2021, for service to be effected by 30 April 2021. It was entirely inconsistent for the parties to enter into that agreement for a consent order if the parties were all operating on the basis that the claim form had already been effectively served.

47. On 15 April 2021, before the sealing of the consent order and prior to the time period expiring for service of the claim form, the claimants again requested a consent order for an extension of the time for service of the particulars of claim, medical evidence and schedule of loss.   Again both defendants agreed to that further extension of time until 30 July 2021, and the consent order was approved by the court on 18 May 2021.

48. Those further consent orders were not consistent with the parties acting as if the claim form had been served and, following Barton and Good Law Project, the defendants were not required to assist the claimant in serving the claim form – so long as they did not do anything to put obstacles in the way of the claimant.

49. The claimant relies upon Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898, where the Court of Appeal held that there was in that case an overwhelmingly good reason to order under CPR 6.15(2) that the steps already taken to bring the claim form to the attention of the defendants constituted good service. However, that case was very much on its own facts and, importantly, predates what was said by Lord Sumption in Barton as followed by Carr LJ in Good Law Project.   The Court of Appeal took the view in Power that the defendant solicitor’s letter was neither helpful nor constructive as there was no lack of clarity about the fact that proceedings had not been formally served.    What distinguishes Power from this case is that in Power “The correspondence and discussions between the solicitors, objectively viewed, can only have given the impression that the claim was acknowledged to be live, which in the context was consistent with service having been effected within the period of validity of the Claim Form.”   On a proper consideration of the facts of this case, the evidence does not support a finding that the defendants’ solicitors were treating the claim as live, rather the fourth defendant’s solicitors raised the point, when the unsealed claim form was purportedly served, “is that right?” and thereafter agreed to extend time for service of the claim form.

50. In my judgment the District Judge erred in concluding that the defendants had in some way acted on the basis that the claim form had been served. Not only did the fourth defendant’s solicitor query the service of an unsealed claim for but both defendants entered into consent orders to extend time.  In any event, subsequent to the Supreme Court findings in Barton, the defendants were not obliged to assist the claimant in any way – it was entirely a matter for the claimant to get service right.

FAILURE TO TAKE THE CLAIMANT’S DELAY INTO ACCOUNT

51. The claimant’s solicitors ought to have realised that there had been a failure to serve on time and yet, despite being on notice of the applications on the part of the defendants, by (at the latest) 5 August 2021 when the fourth defendant’s application was served, the claimant failed to file an application until 18 February 2022, which was served on 2 March 2022. The claimant therefore allowed more than 6 months pass before making its application.
52. I agree that is a significant delay and while, without more, it might not be sufficiently significant to deny an otherwise good application, it is something that the District Judge ought to have taken into account as a factor weighing against the granting of the application. The District Judge did not take this matter into consideration.

LOSS OF THE LIMITATION DEFENCE

Ground 1.7 The Judge was wrong in his analysis of prejudice caused by the loss of the Limitation Defence and its appropriate weight

53. The District Judge placed the burden upon the defendants to establish that there was a precise limitation defence when there was not yet a claim to meet, and limitation had not been an issue raised within the pre-action correspondence between the parties. Any limitation defence was inevitably going to be stronger for the defendants in June 2023 (the date of the District Judge’s determination) than it had been in July 2018 (the date that the claim forms were brought to court).
54. The claimant’s case is that he was told to stop taking the relevant medication on 16 July 2015. The claim forms were stamped on 11 July 2018.
55. The primary limitation is a period of three years after date of accrual of the cause of action pursuant to section 11 of the Limitation Act 1980. The District Judge recognised that the claimant might seek to rely upon section 11(4) of the Limitation Act 1980, which provides for an extended period to bring a claim where the date of knowledge is later, but concluded that no weight should be given to the lost limitation argument because “it appears unlikely that this will be relied on or will succeed as it appears on the evidence before me that the Claimant will assert that his date of knowledge was no later than mid-2015.”
56. There was no basis upon which the District Judge could reach that conclusion as there had been no argument between the parties through correspondence and the claimant’s position was not known. It was possible that the defendants would succeed on arguing that primary limitation had expired prior to the claim being brought which could result in the claimant seeking to establish a later date of knowledge so as to bring himself within section 11(4) of the Act.
57. Further, the District Judge erred in placing responsibility upon the defendants to particularise the limitation defence in circumstances where the same had not been discussed between the parties. Any loss of a limitation defence could only be a matter that weighed against the granting of the application.