DEFENDANT’S POINT ON NON-SERVICE OF THE CLAIM FORM NOT ACCEPTED: THE CLAIMANT HAD TAKEN ALL REASONABLE STEPS

The judgment of Fordham J in  Baz v General Dental Council [2025] EWHC 643 (Admin) contained an interesting issue in relation to service of the claim form.   The defendant conceded that the claim form had been properly placed in the post, however their case is that it had not been received. The judge did not accept the defendant’s contention that the action should not proceed for this reason. The claimant had taken all reasonable steps.

” I have been unpersuaded by these submissions. In my judgment, the Claimant plainly did take all reasonable steps to comply. I have described the four accepted points. The Claimant used the first option in Form N215. She obtained a proof of posting. She also duly filed N215 with the Court (17.5.24). She acted promptly. She also promptly told the Defendant (5.4.24) that the claim had been lodged”

THE CASE

The claimant issued judicial review proceedings against the defendant.  Those proceedings were served by the claimant by post on the defendant. A “green light” order was made by the court allowing the claimant to proceed.  The defendant applied to set aside the green light order. One of the grounds of the application was that the claimant had not served the defendant.  The defendant’s argument was that the claim form had not actually been received by the defendant, even though there was clear evidence in had been posted.

THE JUDGMENT ON THIS ISSUE

The judge did not accept the defendant’s contentions.

22. The Defendant’s strike-out application gives as a final basis “lack of service of the Claim Form within the period provided for by CPR 54.7 or at all” where “valid service [is] the foundation of the Court’s jurisdiction to hear the claim: see R (Good Law Project) v SSHSC [2022] EWCA Civ 355, in particular §§36-41″. In the end, this was the mainstay of the strike-out application. Even then, Mr Bradly KC accepts the following four points. First, service by first-class post was an option available to the Claimant, which could be confirmed by certificate of service (Form N215). Secondly, that the Claimant did send the claim documents, once the claim had been issued (16.5.24), by first class post with a proof of posting which she has been able to produce (17.5.24). Thirdly, that the Claimant would have had no reason to suppose that these had not been received within the Defendant’s offices. Fourthly, that although an email from the Defendant to the Claimant (4.4.24) had drawn her attention to service by email: (a) that was only said in relation to appeal documents; and (b) it did not say that service by email was the “only” way of serving the Defendant.

23. Mr Bradly KC submits in essence as follows. Service in CPR 54.7 means “actual service” (Good Law §24). Since the documents were never received by the Defendant, there has been a default of service. The four accepted points are no answer to that. It means the Claimant needs to show that she has taken all reasonable steps to comply (Good Law §§81-82), under CPR 3.1(2)(a). She should have made an application for an extension of time (N244). She cannot meet the “all reasonable steps” test.

24. I have been unpersuaded by these submissions. In my judgment, the Claimant plainly did take all reasonable steps to comply. I have described the four accepted points. The Claimant used the first option in Form N215. She obtained a proof of posting. She also duly filed N215 with the Court (17.5.24). She acted promptly. She also promptly told the Defendant (5.4.24) that the claim had been lodged. As I have mentioned, the Defendant for its part chose to chase the matter with the Court, using unilateral communications. It did not ask the Claimant and it did not cc her. The Defendant received the claim documents from the Court (3.7.24). I will extend the Claimant’s time to effect service of the judicial review claim. I will dispense with the need for service to be re-effected, in circumstances where the documents were supplied by the Court (3.7.24). I will dispense with the need for any further application to extend time. The Defendant’s strike-out (N244) and witness statement did not identify such a step as needed. I have no doubt that the Claimant would have issued another N244 notice had she been alerted.