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Jean-Yves Gilg

Editor, Solicitors Journal

Serves you right

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Serves you right

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Issues concerning service of the claim form have been addressed by the Court of Appeal on numerous occasions since the inception of the CPR. Clive Thomas tackles some of the common questions posed by practitioners

When must the claim form be served?

The general rule is that the claim form must be served within four months of issue (six months if served out of the jurisdiction), CPR 7.5.

On what date is the claim form served?

The claim form is deemed served in accordance with the table set out in CPR 6.7. The deemed service date depends upon the method of service that has been adopted. For example, if the claim form is served by first class post, it is deemed served on the second day after it was posted. The importance of CPR 6.7 is that it provides a date when the claim form is deemed served as opposed to the date that it was actually served on the defendant.

In Godwin v Swindon Borough Council [2001] EWCA Civ 1478, the claim form was served by first class post on a Thursday. It arrived on the Friday, which was the last day of the four-month period allowed under CPR 7.5. In reality, therefore, the claim form was served in time. However, the Court of Appeal held that it was deemed served on the Monday (two days for first class post not including weekends). The claim was thus struck out despite the fact that in reality the claim form had been served within the four-month period. The Court of Appeal said that the deemed service date was not rebuttable by evidence of when the claim form was actually served.

In Anderton v Clwyd CC [2002] EWCA Civ 933, the Court of Appeal re-emphasised the ratio in Goodwin. However, the court also said that when working out the deemed service dates weekends and bank holidays are included.

Can the claimant apply to the court for an order extending the time for service of the claim form?

The simple answer to this question is: yes. CPR 7.6 deals with applications for extensions of time for service of a claim form. The application can either be made within the four-month period permitted by CPR 7.5 or outside that four-month period.

(a) The application is made within the four-month period: CPR 7.6(2)

CPR 7.6(2) says that an application to extend the time for service of the claim form must generally be made within the four-month period (or if an order has already been made extending time, within the period of time specified in that order). In Hashtroodi v Hancock [2004] EWCA Civ 652, the Court of Appeal dealt with the principles that apply when the court considers whether to extend time for service of the claim form where the application is made within the four-month period and where the claim has become statute-barred within that time. The court held that, as CPR 7.6(2) has no conditions attached to it, the power to grant an extension had to be exercised in accordance with the overriding objective. The Court of Appeal held that where there is a good reason as to why the claimant has failed to serve the claim form in the specified time an extension of time will usually be given. An oversight is not a good reason.

(b) The application is made outside the four-month period: CPR 7.6(3)

The court can only make an order if the following three requirements set out in CPR 7.6 (3) are met.

(i) The court has been unable to serve the claim form

In Cranfield v Bridgegrove [2003] EWCA Civ 656, the Court of Appeal said this includes where the court, by its own error, has failed to serve the claim form.

(ii) The claimant has taken all reasonable steps to serve the claim form, but has been unable to do so

In Vinos v Marks & Spencers [2001] 3 All ER 784, the defendants had admitted liability and made an interim payment. The claimant solicitors offered no good reason for serving the claim form one week late. This simple oversight proved fatal. May LJ said: 'There is nothing unjust in a system which says that if you leave issuing proceedings to the last moment and then do not comply with this particular time requirement and do not satisfy the conditions in r 7.6(3) your claim is lost and a new claim will be statute-barred. You have had three years and four months to get things in order.'

(iii) In either case the claimant has acted promptly in making the application

Is there a way around CPR 7.6(3)?

It can be seen from the above that any application to extend the period of time within which to serve the claim form should be made within the four-month period. Provided that a good reason is advanced for seeking such an order, the court is likely to make an order in the claimant's favour. Any application made outside the four-month period that fails to satisfy the requirements set out in CPR 7.6 (3) is unlikely to be successful. It is thus not surprising that attempts have been made to circumvent the potentially disastrous affects of CPR 7.6(3). These have centred on the court's case management powers under CPR 3.1 and the court's power to dispense with service under CPR 6.9.

(a) The court's general case management powers

Under CPR 3.1 (2)(a), the court can, except where the rules provide otherwise, extend the time for compliance with any rule even if the application for extension is made after the time for compliance has expired. However, Rule 3.1(2)(a) does not empower the court to extend the time for serving a claim form because 7.6(3) does provide otherwise.

(b) The court's power to dispense with service

Under CPR 6.9, the court may dispense with service of a document.

In Goodwin, the Court of Appeal held that CPR 6.9 cannot be invoked to dispense with service as a means to avoid the effect of CPR 7.6(3).

The Court of Appeal slightly modified this approach in Anderton. The court made a distinction between two cases:

  • The claimant has not served the claim form at all. In those circumstances, CPR 6.9 cannot be used as a means to get around the fact that the claimant is caught by CPR 7.6(3).
  • The claimant has served the claim form in time, but the deemed date of service means it is served out of time. In those circumstances, the court in Anderton said that service can be dispensed with under CPR 6.9.

In Wilkey v BBC [2002] EWCA Civ 1561, the Court of Appeal said that:

  • Before July 2002, the court may dispense with service, where as, in Anderton, the claim form had been served in time, but the deemed service date was out of time.
  • After July 2002, the CPR 6.9 power should not ordinarily be exercised.

In Kuenyehia v International Hospitals Group Ltd [2006] EWCA Civ 21, the Court of Appeal looked at the above cases and gave this guidance:

  • It requires an exceptional case before the court will exercise its power to dispense with service under r 6.9 where the time limit for service of a claim form in CPR 7.5 (2) has expired.
  • The power is unlikely to be exercised save either where the claimant has made an ineffective attempt to serve in time or has served in time in a manner which involved a minor departure from one of those permitted methods of service.
  • It would not be possible to give an exhaustive guide to the circumstances in which it would be right to dispense with service of a claim form.

In Kuenyehia, the failure to comply with the requirement to obtain written consent to serve by fax in para 3.1 (1) of the CPR 6 PD was not considered a minor departure.

Should you make an application for an extension of time for service of the claim form without giving notice?

In Hashtroodi, the claimant's solicitors issued shortly before expiry of the limitation period. A few days before the date for service the claimant's solicitors made an ex parte application for a three-week extension which was granted. The defendants applied under CPR 23.10 to set aside the order as it was made without notice. CPR 23.10 says that such an application is a rehearing of the issue and not a review of the decision. The court held that the failure to serve was down to the incompetence of the solicitors and thus an extension of time should not be granted. In practice therefore an order for an extension of time for service of the claim form made without notice cannot be safely relied upon because the court may on a subsequent on notice hearing order that the initial order has no validity.

Miscellaneous points

(a) Claimant serves on defendant instead of nominated solicitors

In Nanglegan v Royal Free Hampstead NHS Trust [2001] EWCA Civ 127, the claimant served on the defendant when solicitors had been nominated. Service was held to be ineffective.

(b) Defendant nominates solicitors but the solicitors do not confirm that they will accept service and the claimant serves on the solicitors

CPR 6.4 says that the solicitor must be authorised to accept service and the solicitor must notify the claimant's solicitor that he is nominated. In Horn v Dorset Healthcare NHS Trust [2004], the High Court said that it was not necessary for the solicitors to confirm in writing that they were nominated to accept service of proceedings. This seems to be supported by the commentary in the White Book.

(c) Claimant serves on the defendant's insurers

In McManus v Sharif [2003] (one of the Cranfield appeals) it was held that service on the defendant's insurers was ineffective.

(d) Service on an individual at his last known address

CPR 6.5(6) says that where the defendant has not instructed solicitors and has not given an address for service, the document must be sent according to the table in the rules. In Mersey Docks Property Holdings v Kilgour [2004] EWHC 1638, it was held that the claimant had to undertake reasonable enquiries to ascertain whether an address constitutes the defendants last known address. The defendant was an architect; an enquiry via the Yellow Pages or of his professional body would have revealed his address. Service was invalid.

(e) Service on a limited company

CPR 6.2(2) says that a company can be served as an alternative to the methods set out in the CPR by any other method allowed by the Companies Act 1985. In Murphy v Staples (part of the Cranfield appeals), the claim form was served on the defendant company although the defendant had said that their solicitors would accept service. This was held to be good service.

Conclusion

Many of the cases cited above are littered with comments from members of the judiciary as to how claimant solicitors really should issue and serve proceedings in time. What these comments fail to appreciate of course is the reality of practice. Clients often delay seeking legal advice until the eve of the limitation period on their claim expiring. Fee-earners go on holiday; they may fall ill or leave the practice. All of these factors plus dozens more that I could mention put an enormous strain on busy practitioners. It is thus little wonder that on occasions practitioners find themselves falling foul of the rules.

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