As a change to the almost never ending issues relating to late service of the claim form we have a case about late service of the Particulars of Claim.  In Joseph v McFaddens LLP [2024] EWHC 2447 (Ch) Deputy Master Raeburn found that the claimant had failed to serve the Particulars of Claim within the four month period. The claimant’s application for relief from sanctions was refused and the action was struck out. The case serves as a salutary reminder that a claimant has to serve the Particulars within four months of issue and that they are not subject to the same “deeming” provisions as the claim form.

THE CASE

The claimant brought an action against the defendant. Proceedings were issued on 28th June 2023.   The claim form was served on the 18th October 2023. The particulars of claim were posted on 30th October 2023 and received by the defendant on 1st November 2023.

THE RULES RELATING TO SERVICE OF THE CLAIM FORM

The judge reviewed the relevant legal principles.

“The Relevant Legal Principles

Service under the Civil Procedure Rules

16. The starting point in the context of the Defendant’s application is CPR rule 7.4(2) which states that Particulars of Claim must be served no later than the latest time for serving the claim form.

17. CPR rule 7.5(1) provides as follows:

“Where the claim form is served within the jurisdiction, the Claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form:”

THE CLAIMANT’S ARGUMENTS IN THE CURRENT CASE

On the face of it the claim form was received outside the initial four month period in which they should be served.  The claimant argued that the the deemed service provisions meant that the claim form was served in time. This argument was rejected by the judge.

THE JUDGE’S FINDING THAT THE PARTICULARS OF CLAIM WERE SERVED LATE

29. Contrary to Counsel for the Claimant’s submissions, I do not find T&L Sugars
to support the Claimant’s position, which is clear when one considers the
reasoning and conclusions borne out in, inter alia, paragraphs [32] – [40] of that
judgment. Further, whilst I note that T&L Sugars involved the interpretation of
service provisions in a contract, the issues may be considered analogous to the
present case (and there is indeed direct reference to the consideration of the
effect of CPR 7.5). In that regard, the Court ultimately determined that there
was “…absolutely no justification for reading the word “served” in cl 11.3 as
referring to “deemed service” under CPR 6.14 rather than actual service under
CPR 7.5”.

30. Whilst I was not taken to the following authorities in the course of submissions,
I consider the conclusion I have reached to also be consistent with analogous
reasoning exemplified in: Paxton Jones v Chichester Harbour Conservancy
[2017] EWHC 2270 (QB); Oran Environmental Solutions Ltd v QBE Insurance
(Europe) Ltd [2020] EWHC 1271 (Comm); and Howard Kennedy v The
National Trust for Scotland [2019] EWCA Civ 648.

31. Therefore, in my judgment, the Claimant’s service of the Particulars of Claim
was late; “the relevant step” having been taken on 30 October 2023 which is
after the latest time for the service of the Claim Form. In the circumstances, I
do not regard the purpose of the “deemed service” fiction to be engaged.

32. Alternatively, the Claimant’s service of the Particulars of Claim is late even if
the correct approach in this context is to apply the fiction of the deeming
provisions as having a central role for the purposes of regulating the date by
which the Particulars of Claim are to be served.

33. It would mean that the four month period of validity of the Claim Form is to be
regarded as extending until the date of deemed service of the Claim Form (in
this case, two business days following the 28 October 2023 – i.e. 31 October
2023) pursuant to CPR rule 6.14. Therefore the “latest time” within CPR 7.4(2)
for the separate service of the Particulars of Claim would be “that deemed date”
(i.e. the 31 October 2023).

34. Taking that approach, it would logically follow that the concomitant deeming
provisions for the service of the Particulars of Claim would also be relevant in
determining when “service” took place. In this case it would result in the
Particulars of Claim being deemed served on 1 November 2023 which is, in any
event, after the latest time for the service of the Claim Form (where that is to be
regarded as) 31 October 2023.

RELIEF FROM SANCTIONS REFUSED

The judge then considered, and refused, the claimant’s application for relief from sanctions. Whilst issues relating to service of the claim form are considered under CPR 7.6 the question of late service of the particulars is dealt with under CPR 3.9 and the Denton principles.

Issue 2: Whether the Court should grant the Claimant’s Application for a retrospective
extension of time

35. It is common ground that the application for an extension by the Claimant
should be determined according to the Denton v TH White Ltd [2014] EWCA
Civ 906 principles.

36. Counsel for the Claimant submits in summary that:
i) Viewed objectively, the delay is minimal – even if deemed service is
taken to be 1 November 2023, the overriding objective is such as to
militate toward granting an extension in the exercise of the Court’s
discretion;
ii) The Defendant is not prejudiced; the Claim Form was served on time
and a letter before action inviting conciliation and pre-action exchanges
together with a standstill offer was also sent at an earlier stage of the
proceedings, which was impermissibly ignored;
iii) The personal circumstances of the Claimant were such that there should
be consideration of the difficulties faced by the Claimant at the material
time (in the form of work related time pressures).

The Denton Test

Stage 1: Seriousness or significance of the breach

37. Counsel for the Claimant further submits that the default is neither serious nor
significant – it is submitted that in addition to the work-related pressure that the
Claimant faced at the material time, she was also not assisted by “legal litigation
support”.
38. Reliance is placed on the decision of Popplewell J, as he then was, in the case
of Viridor Waste Management Ltd v Veolia ES Ltd [2015] EWHC 2321
(Comm), (in which the Particulars of Claim had been served between 1-3 days
late) and in particular in the dictum at [19]:

“It must be remembered that although there are formal rules of service
which ought to be complied with, their ultimate purpose is to bring the
relevant document to the attention of the relevant person acting on the other
side in circumstances where that other person knows that a procedural step
has been taken see Abela v Baadarani [2013] 1WLR 2043 per Lord Clarke
at paragraph [39]. When one is assessing the significance of a default and
complying with a letter of rule which involve services, in my view is part of
the focus on the purpose of the rule. The significance of a default in
complying the rule or order as to service, where a default has happened
nevertheless would propose the purpose which underlies, an order will
usually be small.”

39. It is submitted that the default in the present case is, in light of Viridor, to be
considered as a minor delay which has no real impact on the course of the
litigation.

40. The Defendant submits that Viridor is distinguishable on the basis that amongst
other things, the facts were very different given that in particular, Viridor
concerned two parties who had negotiated repeated extensions of time together
with a stay and that there had been no history of non-compliance with the rules
by the parties.

41. In my judgment, the breach clearly is serious and significant: (i) the Particulars
of Claim were only served toward the end of the period of validity; (ii) although
the claim had been intimated by the Claimant, the Defendant was entitled to
understand within the 4 month period set in the Civil Procedure Rules what that
claim actually comprised of.

Stage 2: Why the breach occurred

42. The Claimant’s evidence includes the following reasons for the breach:
i) Personal circumstances and work pressures at the time (at the end of
October 2023). It is stated in the Claimant’s evidence that, “Although I
was made aware of the deadline my employment duties in the main
caused the delay. To compound these pressures I had a family crisis.”;
ii) “My lawyer provided me with the cut-off date but as I say I allowed other
considerations to distract me”.
iii) “I perhaps unwisely had an idea in my mind that of counting days for
service should be working days only and I became too complacent about
the need for timely service”.
43. In my judgment, these do not amount to good reasons for the breach.

Stage 3: All the circumstances of the case

44. The Court must consider all of the circumstances of the case, including the
factors listed in CPR rule 3.9(1)(a) and (b). In this case, I note the following
factors in particular:
i) Although the First Claim was brought in June 2019, the Claimant waited
until June 2023 to bring the present claim;
ii) The Claimant would have been on notice from the Defendant’s
application in November 2023 that there was an issue with the service
of her Particulars of Claim and the need for her to seek a retrospective
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extension of time; however there is no good reason advanced as to why
she waited until January 2024 to make the present application;
iii) It is clear from the evidence that the Claimant knew of the deadlines she
needed to comply with; it was open to the Claimant to indicate that there
had been, or would be, an issue(s) with service and/or seek an extension
of time for service of the Particulars of Claim accordingly;
iv) The Particulars of Claim were not drafted until 29 October 2023.
Accordingly, the Claimant waited until the very end of the period for
service of the Particulars of Claim to prepare the same;
v) Whilst the First Claim is said to be different to the current claim in this
Court, it is clear that the issues arise out of similar facts. The First Claim
was issued in 2019 and there is no good reason advanced as to why it
took until October 2023 to particularise the current claim.
45. I do not regard it as appropriate in these circumstances to grant relief from
sanctions in this case. The Claimant has had a significant period of time and
opportunity to articulate and advance her claims and it would appear that a
considerable amount of court resources has been devoted to the issues between
the parties.
46. There is a clear interest in finality in litigation; I would therefore dismiss the
Claimant’s application.
47. In my judgment it is appropriate to make a declaration in favour of the
Defendant that the Court has no jurisdiction in this claim as a result of the failure
to serve the Particulars of Claim within the period of validity of the Claim Form.

48. I will hear Counsel on any matters consequential upon this judgment, including
the settling of a form of order and any application for costs at a subsequent
hearing.”

WEBINAR ON SERVICE AND CLAIM FORM ISSUES IN 2024: 19th NOVEMBER 2024

There is a webinar on the 19th November  2024 reviewing the cases in 2024, it is becoming increasingly difficult to fit this into an hour, but I will try. Booking details are available here.

This webinar looks at claim form cases in 2024 including:

• Service by the wrong method
• Disputing jurisdiction
• Problems with serving abroad
• Claim failed when the claimant believed claim form would be served by the Court
• When the defendant fails to use the correct rule to dispute jurisdiction
• When can a claim form include multiple parties
• Failing to serve on a nominated solicitor.
• Serving the wrong solicitor.
• Late service of the particulars of claim.