SERVICE OF THE CLAIM FORM: ERRORS AND PROBLEMS 1: LEAVING SERVICE UNTIL THE LAST MINUTE AND THEN NOT SERVING PROPERLY (BY FAX OR DX)

The judgment of Master Dagnall in  Occupiers of Samuel Garside House v Bellway Homes Ltd & Anor [2024] EWHC 1579 (KB) has so many important points in relation to service of the claim form I am looking at the case in a series of posts. The first post deals with the claimant’s failure to serve properly and serve on time.  The claimants left service until the last minute and failed to serve effectively by both DX and fax.

WEBINAR ON SERVICE OF THE CLAIM FORM

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THE CASE

The claimants brought an action for damages following a serious fire at a block of flats.  There are two defendants.  Various extensions of time for service of the claim form were agreed.  The last order made extended time but to 4.00 pm on the date it was due.  One of the defendants (it was found) had agreed to service on their solicitors.   The claimants  attempted to serve by fax and DX on the last day of service.  However the fax transmission did not go through, an attempt was made for one defendant before 4.00 pm and the second after 4.00 pm.  The claimant also arranged for the claim forms to be collected by DX from their offices.

The defendants asserted that service had not taken place within the rules. The claimants sought a declaration that the action had been validly served. Alternatively they sought “relief from sanctions” should their declaration not be granted.

AN OVERVIEW

The Master decided:

1. Service by Fax was ineffective.  There being no indication that the defendants had ever stated they would accept service by fax.
2. The fax transmission failed in any event.
3. Service by DX was ineffective. The claimants had placed the claim form on reception to be collected by DX after 4.00 pm. This did not comply with the terms of the order made.

(This is a short summary of a somewhat more complex set of facts).

THE CLAIMANTS’ APPLICATION FOR A DECLARATION

Whether the Claim Form was served in compliance with CPR7.5

1. 1. The Claimants seek a determination that the Claim Form was validly served i.e. in accordance with the Civil Procedure Rules. The Defendants say that such has not occurred; and, further, SRAL and SRL contend that SRL is not and should not be treated as being a party and that there has been no service ever on SRL.

SHOULD SERVICE BE ON SOLICITORS?

Whether Service was to be on Solicitors

1. 1. It is now common-ground, I think although in any event I consider that it is the case, that both GL (by their email of 9 May 2022) and MB (by their letter of 12 May 2022) provided solicitor confirmations for the purposes of CPR6.7 that they were authorised to accept service. Those confirmations rendered it mandatory for service to take place on the solicitor and not the client (see e.g. Nanglegan v Royal Free [2001] EWCA Civ 127).

1. 1. I note that CPR6.7 requires the solicitor to confirm that they will accept service “at a business address within [the jurisdiction/Scotland/Northern Ireland]”. The GL email did not give any business address.

1. 1. The general law as to construction of documents is not in dispute (and is applicable to these circumstances – see the final paragraph of the White Book notes at 6.7.1 and such cases as Actavis v Ely Lilly [2013] EWCA 517 and Higgins v ERC [2017] EWHC 2190). As stated in such cases as Arnold v Britton 2015 UKSC 36 and Lukoil Asia Pacific Pte Ltd v. Ocean Tankers (Pte) Ltd (The “Ocean Neptune”) [2018] EWHC 163 (Comm) the Court asks itself how a reasonable reader would interpret the document and the words used in the light of the factual matrix known to the parties and the apparent commercial purpose, giving proper weight to the words themselves and ignoring the parties’ subjective understandings, and weighing up the various possible interpretations together (as opposed to in some sort of order so as to leave a default meaning if others are not accepted) in order to come to the answer.

1. 1. Here the wording of the 9 May 2022 email on its own is unclear. However, the construction process has to take place in the context of the factual matrix. Here, the previous letter from GL of 22 January 2021 gave the Leeds Address, and also gave the Leeds Email Address which was being used by both EDS and GL for the purposes of these communications, and I infer (see above) that the letter of 9 May 2022 from EDS to GL seeking confirmation that GL would accept service was addressed to the Leeds Address (although sent by email). That factual matrix seems to me to favour the correct interpretation of the 9 May 2022 email as being that the Leeds Address, being a business address of GL, was being said to be where service should take place. Further, the commercial purpose of the 9 May 2022 email was to provide for service in accordance with CPR6.7, and that also favours it as being interpreted to be stating that the Leeds Address (being the only one so far identified for GL) was the relevant business address for service, as otherwise the 9 May 2022 email would not have the obviously intended effect. Having considered the words, the factual matrix and the commercial purpose, and all the possible constructions, I conclude that the reasonable reader would construe the 9 May 2022 email as stating that the Leeds Address was the business address for service.

1. 1. I further consider that, even if the correct interpretation on construction principles of the 9 May 2022 email was not that the Leeds Address was being stated as the business address for service, such a statement would be implied to be within it. Such a statement is clear, reasonable, and also both obvious (as I consider that the reasonable bystander would consider that it was obvious that both EDS and GL would have answered the question of whether GL was saying that service should at the Leeds Address within a resounding “Yes”) and necessary to give business efficacy to the 9 May 2022 email (which would otherwise not have its intended effect of satisfying CPR6.7), and there was no other realistic possible address at that point in time. I consider that the principles for such an implication (and see e.g. BNY v Cine-UK [2022] EWCA 1021 @ 55, 135-139) are clearly satisfied.

1. 1. A further question arises as who was meant to be “our client” by MB’s statement in the letter of 11 May 2022 that “we can confirm that we are instructed to accept service of proceedings on behalf of our client in relation to the Development”.

1. 1. Here the wording “our client” is potentially ambiguous as the MB letter of 12 May 2022 does not refer to any entity by name. I have borne in mind that the MB letter was sent in reply to that of GL of 11 May 2022 which was headed “YOUR CLIENT: SHEPPARD ROBSON ARCHITECTS LLP” and asked whether MB had “instructions to accept service of proceedings on behalf of your client.” However, I regard the factual matrix as extending to the entire chain of correspondence (and to which the MB letter of 12 May 2022 expressly referred) and where the original 18 December 2020 letter from GL was sent to SRAL but where MB had replied on 14 January 2021 to state that they were “instructed by Sheppard Robson Limited (“Sheppard Robson”)” and to “refer to your letter of claim to Sheppard Robson”; and where MB had then sent the highly detailed letter of 20 January 2021 saying again “We refer to your letter of claim to Sheppard Robson Limited (“Sheppard Robson)” and responding throughout with regard to “Sheppard Robson”.

1. 1. In my judgment, a reasonable reader would interpret the MB letter of 12 May 2022 as referring to SRL as being “our client” and not SRAL. That is in particular, although I have considered all the circumstances, because: (1) MB had only ever identified SRL (and not SRAL) as their client (2) the letter of 12 May 2022 by referring to the previous correspondence made clear that it was dealing with refutation of a claim (and service of any claim form) against SRL being the entity specifically identified by MB in the previous correspondence. While the GL letter of 11 May 2022 identified SRAL as being MB’s client, I am here concerned with MB’s letter and that has to be seen in the overall context where MB clearly regarded themselves as acting on behalf of SRL and had not ever suggested that they acted on behalf of SRAL.

WAS SERVICE EFFECTED BY THE RELEVANT DATE: 21st APRIL 2023

Time for taking of a service step

1. 1. It is common-ground that the November Order extended the time for the taking of a service step under CPR7.5 to 4pm on 21 April 2023. That is essentially what was decided by Master McCloud in Jones. In any event, I regard that decision as being correct and applicable here, notwithstanding that the wording of the November Order was “time for service is extended until…” Applying the general principles of construction set out above, I regard that interpretation a being correct, in particular as:

i) The words “time for service” are ambiguous as they could mean either the deemed date of service under the CPR (CPR6.14 provides it is the second business day after the taking of the relevant service step where service takes place within the jurisdiction as was clearly contemplated here) or the taking of one of the prescribed service steps;

ii) The more natural focus of the extension of time order is an extension of time for doing what is actually required by the CPR i.e. the taking of a prescribed service step; rather than its eventual deemed consequence (i.e. deemed service on a particular date which then triggers the running of time for further steps such as the filing of an Acknowledgment of Service);

iii) The decision in Jones is itself part of the factual matrix. The Order, and which was itself a Consent Order embodying an agreement between the parties, should be interpreted in the light of that relatively recent and published decision;

iv) I agree with Master McCloud that the previous decision in Brightside v RSM 2017 EWHC 6 is fully distinguishable as relating to the interpretation of CPR7.7 rather than of an Order.

I would add that it is much to be preferred if these extension orders referred expressly to the taking of a CPR7.5 step (as is my usual practice, but where here I was making a consent order which contained the parties’ agreement) but I regard the true construction of this Order as being to the same effect.

1. 1. However, I do add that the time for the taking of the prescribed step for service was expressly limited by the November Order to 4pm, and not midnight, on 21 April 2023. While CPR7.5 provides for a midnight deadline, I see no reason to ignore the particular time expressly stated in the November Order.

1. 1. The questions then arise as to whether what happened on 21 April 2023 was sufficient to amount to the taking of a prescribed service step in accordance with the November Order in time in relation to each Defendant (and assuming at this point that the Second Defendant is in fact to be treated as being SRL).

INEFFECTIVE SERVICE ON THE FIRST DEFENDANT

Taking of Service Steps regarding the First Defendant within the time set out in the November Order

1. 1. As far as the First Defendant is concerned, service was purportedly effected by Fax and by DX.

Service by Email

1. 1. I note that references have been made to service by email but that has not been pursued as a contention by the Claimants, and rightly in my view as:

i) The relevant emails did not state that they were purporting to amount to service but rather simply “(by way of copy only)”

ii) CPR PD6A paragraph 4.1(2)(b) is clear that email can only be used as a service method where the solicitor has positively stated that they will accept service by way of email, and an email address, whether or not it has been used to correspond in relation to the dispute is not enough – see above and Barton v Wright Hassall [2018] UKSC 12.

Service by Fax on the First Defendant

1. 1. As far as service by Fax is concerned, questions arise as to (i) whether and if so what Fax number could be used (ii) whether a relevant Fax was actually sent and (iii) if so whether a relevant Fax was actually received and, if not, why that was. I note that in relation to both the Defendants, the Claimants’ application of 28 October 2023 and the supporting evidence did not rely upon service by Fax. However, no objection has been taken to the Claimants seeking to rely on service by Fax and I would consider it to be contrary to the overriding objective for them to be prevented from seeking to do so as (i) no prejudice has been suggested (ii) such would not be fair if service had occurred within time by Fax and (iii) it could lead to the Court potentially reaching a conclusion which was not justified on the true facts by the CPR.

1. 1. The first question is one of interpretation and evaluation of the correspondence. The email which contained the confirmation of authorisation to accept service from GL of 9 May 2022 did not contain any Fax number although it was sent bearing a Leeds telephone number from the Johnson Email Address (and to which EDS’ letter seeking to know whether GL were authorised to accept service had been sent). The previous letter from GL (and which bore the Johnson Email Address) was that of 22 January 2021 which bore the Leeds Address but no Fax number; and subsequent letters from GL bore the Belfast Address but no Fax number.

1. 1. In those circumstances, I cannot see any written indication as to service by Fax on the part of GL sufficient to satisfy CPR PD 6A paragraph 4. That provision requires the indication to be “in writing” and permits it to be by a Fax number “set out on the writing paper of the solicitor”. However, there is simply nothing in writing at all which bears or refers to any Fax number.

1. 1. Mr Sawtell for the Claimants sought to rely on the conversations with “Barbara” on 21 April 2023 in which GL’s Leeds Fax number was ascertained. Those conversations were not in writing and so cannot satisfy CPR PD 6A paragraph 4.

1. 1. It might be arguable that, if a sufficiently clear express or implied statement was made that GL would accept service by fax, some estoppel might arise, although that is dubious where the CPR rule requires there to be a written indication. However, I do not see there as being sufficient in the witness evidence or the emails of 21 April 2023 or the evidence before me as a whole, and having considered inherent probabilities, to render it more likely than not (that is to say applying the balance of probabilities test where the burden of proof (but only to greater than 50.00…% likelihood) here is on the Claimants who would be seeking to assert the existence of the relevant facts) that “Barbara” or some other person at GL who might be said to have authority accepted, expressly or impliedly, that the Claim Form could be served by Fax (as opposed to merely supplying a Fax number by which communications could be made to GL). It seems to me that there would need to be something clear to that effect for an estoppel to be possible, as an oral statement that a particular number was GL’s fax number would go no further than that and would not in my view amount to a representation or give rise to a convention that service of a Claim Form could take place by a sending to such number, but I do not regard the evidence as being sufficient.

1. 1. If I was wrong and that service by sending to the Leeds fax number was sufficient; it would seem sufficiently clear to me that attempts were made to send the Claim Form by fax before 4pm on 21 April 2023 were made, and that they did not succeed (the Claimant’s own evidence being that the sendings failed).

1. 1. That gives rise to a factual question of whether (a) EDS’s fax machine failed to send, (b) EDS’s fax machine did send but the message was lost in transit between the EDS fax machine and the GL fax machine/system or (c) the message reached the GL fax machine/system but which could not process it. Again I have had to consider all the evidence on the balance of probabilities and ask myself simply whether it is more likely than not that what the Claimant requires to have taken place did do so (the burden of proof being on the Claimant but only to a standard of greater than 50.00…% likelihood).

1. 1. Here I have the Claimants’ evidence of numerous failed attempts to send, so that there were actually received and processed, by Fax to both GL and MB during the afternoon of 21 April 2023 around 4pm. The only attempt to GL was at 4pm (that being what was said with specificity in Rana’s third witness statement although an earlier time may have been suggested in Rana’s first witness statement) and the error report stated that it was due to problems with the feed into the EDS fax machine and overloading of it. In all the circumstances and having considered all the evidence, and having considered inherent probabilities, I conclude that the Claimants have not discharged the burden of proof to show that it is more likely than not that the EDS fax machine sent out into the transmission network the Claim Form to GL. Rather, the evidence suggests that the feed problem resulted in there being nothing which can be described as a sufficient “sending” of the fax material. That renders it unnecessary for me to decide in relation to the First Defendant: (a) whether any “sending” took place “by 4pm” being the terms of the extension granted by the November Order or (b) whether mere “sending” is sufficient irrespective of the extent to which the electronic material passes through the transmission network (and which I consider below in relation to MB).

1. I therefore conclude that the Claim Form was not validly served on the First Defendant by Fax to GL.

Service by DX on the First Defendant

1. 1. The Claimants also contend that EDS took a relevant CPR7.5 service step in time by sending the Claim Form by DX. I note that CPR7.5 provides that the relevant service step is “Posting, leaving with, delivering to or collection by the relevant service provider.” Here there are two questions being (i) whether service by DX was permissible and (ii) whether the relevant service step took place in time.

1. 1. With regard to the first question, the Claimants contend that they can rely on paragraph 2.1 of CPR PD 6A and that GL’s writing paper (by the 20 January 2021 letter) set out the Leeds DX Number and GL had not indicated that they were unwilling to accept service by DX. Mr Calland for the First Defendant responds to say that: the GL email of 9 May 2022 did not contain any DX number; and the subsequent GL letters (from 30 September 2022 onwards) were on the Belfast Address notepaper with no DX number and were inconsistent with any preparedness on the part of GL to accept service by DX.

1. 1. It seems to me that if the matter had remained as it was at 9 May 2022, the answer would be simple. The GL 9 May 2022 email is simply a continuation of the previous correspondence sent by the same person (Andrew Johnson) with the same email address (the Leeds Email Address), that correspondence contains the Leeds DX Number on the GL solicitors writing paper, there is no requirement in the PD that the DX number be set out in the letter which contains the confirmation, and I have already held (see above) that the 9 May 2022 email is to be construed (by way of construction or implication) as providing for the Leeds Address to be the address for service and to which address belongs the Leeds DX Number. Thus the Leeds DX Number would satisfy Paragraph 2.1 of CPR PD 6A.

1. 1. However, it does seem to me that the relevant solicitor can change what has been stated previously with regard to service. Were that not to be the case, a solicitor could not safely give an address for service under CPR6.7 for fear that they might change address or other communication details. Such a change should be capable, in my judgment, of being communicated simply by a clear communicated statement and where, ordinarily, a change in writing paper would be sufficient to imply such a communication (although, obviously, it would be best to have an express statement).

1. 1. However, the difficulty here is that the use of the Belfast Address notepaper was an error as the relevant fee earners were not operating from the GL Belfast office which had no connection with the dispute, or its handling, apart from the use of its notepaper (that being for reasons and in circumstances which Mr Calland, for the First Defendant, was unable to explain). Further, while EDS communicated by email, it did so by sending letters addressed to (and which were also sent by post to) the Leeds Address without any demur or complaint from GL.

1. 1. In all those circumstances, I conclude that the use by GL of the Belfast Address notepaper was such a clear and obvious error that it should be ignored for all (including CPR) purposes; in accordance with the general principle that obvious errors are to be disregarded – see e.g. Mannai v Eagle Star [1997] AC 749 (and while that decision is in the context of interpretation of notices, I do not see why its principles should not be applied to interpretation of correspondence in this context).

1. 1. I therefore conclude that sending to the Leeds DX Address was an appropriate means of service on the First Defendant.

1. 1. However, the second question is whether such a sending occurred within time; being by 4pm on 21 April 2023. Here the evidence from Rana is that the Claim Form was left in the EDS reception for collection by the DX courier which took place on the usual basis after office hours i.e. after 4pm. That evidence has not been challenged and I accept it and regard those matters as having been proved on the balance of probabilities. However, I note that Rana does not identify precisely when the documents were printed out and left for collection (although it would have been after 3.40pm).

1. 1. Nevertheless, even if the printing out etc. took place before 4pm, I do not regard that as sufficient for the relevant service step to have been taken in time under CPR7.5. The leaving of the material in the EDS reception cannot, in my judgment, amount to a “delivering to… the relevant service provider” and the “collection by the relevant service provider” only took place after the 4pm time limit contained within the November Order. While the position might be different (although I have reached no conclusion on the point) if the material had been placed in a box owned by the DX provider (and possibly to which only the DX provider had a key), Rana only states that the material was left in reception and that the DX courier had a key to the office enabling access after office hours.

1. 1. I therefore do not regard there as having been valid service on the First Defendant by DX (or fax or otherwise) in compliance with CPR7.5 within the extended time allowed for by the November Order.

INEFFECTIVE SERVICE ON THE SECOND DEFENDANT

Service on the Second Defendant within the time set out in the November Order

1. 1. The Claimants again contend that service on the Second Defendant (assuming that it is SRL) was effected by Fax and DX to MB. They do not assert that it was effected by email, rightly in my view for the same reasons as to why service was not effected by email to GL in relation to the First Defendant.

Service on Second Defendant by Fax

1. 1. Here the evidence of Rana, which I accept as to this and other matters (and which has not been challenged as such with no application having been made for cross-examination), is that EDS sought to serve MB by sending a Fax to the MB Fax Number at 15.49pm on 21 April 2023 which generated a ##280 error message and a Fax to the MB Fax Number after 4pm on 21 April 2023 which failed with an error message relating to document feeding problems. The evidence of Hobson, which is consistent with that of Rana, and which I also accept as to this and other matters (and which has not been challenged as such with no application having been made for cross-examination), is that MB did not receive any fax from EDS on 21 April 2023. I regard those matters as proved on the balance of probabilities.

1. 1. I therefore have to consider in relation to each of those two attempts at what point in the transmission sequence the failure occurred; and have considered all the evidence and the inherent probabilities.

1. 1. In relation to the second attempt (i.e. that after 4pm), I consider that the Claimants have not proved on the balance of probabilities that the Fax was sent from the EDS Fax machine at all into the transmission network. That conclusion is consistent with the error message received which appears at first sight to relate to a problem which the EDS Fax machine had with the documents which were being sought to be sent. It is also consistent (although there are other explanations for the following) with the fact that MB did not receive any fax from EDS. I do not consider that the Claimant has proved there occurred what would be sufficient to amount to the taking of a CPR7.5 service step at all. However, in any event, whatever did happen only occurred after the 4pm deadline in the November Order and therefore did not take place in time.

1. 1. The first attempt (i.e. that at 15.49pm) was within the time limited by the November Order. Here the evidence as to what occurred; being, in particular (although I have considered all of the evidence). the ##280 error message which I am satisfied on the evidence of both Rana and Hobson only meant that a problem had occurred somewhere in the process (which could be at the EDS Fax machine or at the MB fax machine or anywhere in between), the fact that where there were document feeding problems a different error message would be generated, the fact that the EDS Fax machine was successfully sending faxes to other destinations, the fact that the fax was not received by MB, and the fact that no problems were reported with the MB fax machine; is finely balanced. However, the burden of proof is on the Claimants, and I do not consider that the Claimants have discharged it on the balance of probabilities. All I can really tell is that the attempted transmission failed and I do not have sufficient to conclude that it is more likely than not that the transmission failed at some electronic point after the EDS machine had “sent” it. That it does not seem to me can have been sufficient to amount to a “Sending the… other electronic transmission” within the meaning of CPR7.5.

1. 1. If I had concluded that the transmission had failed at some later electronic point, I would then have had to ask myself whether what had occurred was sufficient to comply with CPR7.5 where the wording of “Sending” might be capable of being contrasted with “Receiving” and suggest that all that was necessary was for the Fax to leave the EDS Fax machine electronically and enter into the transmission network even if it did not reach its destination (rather than its being rejected by the MB Fax machine). That would involve me having to construe CPR7.5 in accordance with the usual construction principles, such to include what appeared to be the underlying statutory purpose.

1. 1. I note that the current wording of the CPR (and which was in place as at 21 April 2023) is that the CPR7.5 service step for “Electronic method” is “Sending the e-mail or other electronic transmission.” Before 1 October 2022 (and the coming into force of the Civil Procedure (Amendment No. 2) Rules 2022 SI 2022/783, the rule read “Fax… Completing the transmission of the fax. Other electronic method… Sending the email or other electronic transmission.” The rule amendment involved combining all forms of electronic transmission into one, essentially as part of the CPRC’s process of simplification of the CPR. The previous (pre-1 October 2022) wording might be said to suggest a need at least for the transmission to reach the receiving (MB) fax machine although it can be read to merely require the electronic data to be transmitted out of the EDS Fax machine. Moreover, there are dangers in using a previous version of the rule to seek to construe the amended version as the actual intention of the CPRC in amending the rule is inadmissible when construing it. I therefore do not find the fact of the rule change or the previous version of the rule as being of particular assistance.

1. 1. In my view the key word is “Sending” and this part of the rule has to be seen in the context of other parts of CPR7.5(1) which are framed in terms of considering what the serving claimant has to have done themselves rather than what others (e.g. the post office or a relevant service provider or the internet) have done (successfully or otherwise) themselves. I therefore would have concluded that it would have been sufficient for the full electronic information (i.e. the Claim Form itself [rather than just a machine enquiry from the EDS Fax machine to the MB Fax machine as to whether the latter would accept a transmission – the electronic fax equivalent to dialling a phone number and getting some tone in response] to have left the EDS Fax machine and entered into the transmission network whether or not it had then reached (but not been accepted by) the MB Fax machine; rather than there having to be shown that the MB Fax machine had actually rejected or failed to process the transmitted Claim Form electronic data. However, I am not satisfied on the balance of probabilities, for the reasons given above, that that occurred.

1. 1. Accordingly, I do not consider that the Claim Form was served by Fax on the Second Defendant within the time limited by the November Order.

Service on the Second Defendant by DX

1. 1. In relation to the contention that the Claim Form was served in compliance with CPR7.5 by DX to the MB DX Address; I accept Rana’s evidence that at some time shortly after 15.49pm it was left at the EDS reception for collection by the DX courier but that it was only collected after office hours that day, and find those facts as having been proved on the balance of probabilities. However, for the same reasons as I have stated regarding the First Defendant above, that meant that the service step was not completed within the time limited by the November Order.

Conclusion in relation to service within the time limited by the November Order

1. For the reasons given above, I conclude that the Claimants have failed to show that they completed a CPR 7.5 service step before the time limited