Service of the Claim Form – the potential pitfalls
Recent case law has reminded claimant lawyers to be careful to comply properly with the rules on service of the Claim Form or risk having the claim struck out.
The service provisions are found in Part 7 of the Civil Procedure Rules. Rule 7.2 states that proceedings are started “when the court issues a claim form at the request of the claimant”. Rule 7.2(2) goes on to say that a Claim Form is issued on the date entered on the form by the court.
Service of a Claim Form is then found in rule 7.5 and is reproduced below:
“7.5
(1) 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 rules differ for service outside of the jurisdiction but in general, the most claimant lawyers will be serving Claim Forms within England and Wales.
As stated in rule 7.5(1), the claimant or their representatives must effect service within four calendar months of the date of issue of the proceedings. Under rule 7.6, the claimant can make an application to the court to extend the time for service of the proceedings, provided that the application is made during the four month service period.
But what happens if the claimant’s solicitors either fail to serve Claim Form completely or do not serve within the time limit?
It would appear that the courts are hearing something of a glut of these types of issues at the current time as Master McCloud recently commented in her judgment in Jones v Chichester Harbour Conservancy & Ors [2017] EWHC 2270.
that it was “one of three cases relating to service issues in which I will be giving judgment”.
The case of Jones revolved around whether service of the Claim Form was properly effected when the deemed date of service was outside the specified time limit but when the actual step of serving was taken within that time limit.
In that case, the claimant’s solicitors issued proceedings in the High Court on 1 July 2016 and therefore had until 1 November 2016 to serve them. In October 2016, they applied to the Court to extend the time for service of the Claim Form to 17 January 2017 and that order was made by Master Fontaine.
On 17 January 2017, the claimant’s solicitors emailed the Claim Form to the first defendant at 4.27pm. The hard copy was sent by first class post and was received by the first defendant on 18 January 2017. The first defendant had not agreed to accept service by email. The first defendant then made an application on the basis that the Claim Form was not validly served. The second and third defendants also made applications in the same terms.
The other relevant rule in this case was CPR 6.14, namely that a Claim Form served within the UK is “deemed to be served on the second business day after completion of the relevant step under rule 7.5(1)”.
The defendants argued that Master Fontaine’s order meant that the claimant’s solicitors should have taken the step to serve the Claim Form, i.e. put it in the post, by 13 January 2017 (a Friday) so that it would be deemed served on 17 January 2017 (a Tuesday and the second business day after it was posted).
The claimant’s solicitors responded that in order to comply with the rules on service, it was only necessary for them to take the step to serve – that is, put the Claim Form in the DX or post – by midnight on the day of the deadline for service, i.e. 17 January 2017. The claimant’s solicitors also relied upon footnotes in the White Book on procedure in support of their argument.
Master McCloud considered the case law put forward by the defendants including the case of Brightside but she distinguished it on the grounds that it related to rule 7.7 and not 7.5. She stated at paragraph 38 of her judgment:
“(1) the correct approach when determining whether, for the purpose of answering the question “was the Claim Form served during its period of validity?” is to ascertain whether the Claimant has carried out the step require by rule 7.5 within the time provided for doing so. That would apply equally to cases where time for service has been extended by order (as here) and to cases where the basic 4 or 6 month period of validity applies; and
(2) as to the purpose of the “deemed date” provisions in rule 6.14 those have to be given an interpretation which gives them a meaningful function and in my judgment the deeming provisions operate as a means to ensure that it is clear to the parties what date is to be used for the purpose of calculating such things as the date for service of acknowledgment of service or defence”
She therefore concluded that as the claimant had taken the step of putting the Claim Form in the post by midnight on 17 January 2017, the Claim Form had been validly served.
Another recent case which also involved service of a Claim Form was Higgins & Others -v- ERC Accountants and Business Advisers Limited & Another [2017] EWCH 2190 (Ch). The claim was in respect of tax advice, not personal injury, but the judgment is still highly relevant.
The Claim Form in this case was issued on 19 May 2016. On 20 July 2016, the claimant’s solicitors sent a copy of the Claim Form to the first defendant’s solicitors. They stated that the Particulars of Claim would follow within 14 days. There then followed correspondence between the parties regarding mediation and extensions of time for service of the Claim Form and/or Particulars of Claim. On 25 August 2016, the claimant’s solicitors wrote to the defendant’s solicitors stating that they would apply for an extension of time for service of the Claim Form if the defendant was still willing to pursue mediation. In the absence of an extension of time, the Claim Form would need to be served by 19 September 2016.
The parties agreed a consent order which extended the time for service of the Claim Form to 19 January 2017. Negotiations stalled and the claimant’s solicitors then agreed another extension of time to 19 March 2017 and an order in those terms was sealed on 24 January 2017.
On 17 March 2017, the claimant’s solicitors sent the Particulars of Claim – but not the Claim Form – by first class post to the first and second defendants’ solicitors.
On 31 March 2017, the second defendant’s solicitors wrote a letter stating that as the Claim Form had not been served, it had expired and that they would therefore apply to strike out the claim. They then filed an Acknowledgment of Service in those terms and the first defendant’s solicitors did the same on 3 April. On 31 March, the claimant’s solicitors sent the Claim Form (previously amended to remove a third defendant), Particulars of Claim and response pack. The defendants then issued applications for strike out.
The claimant’s solicitors argued that the Claim Form had been validly served on 20 July 2016 when it was first sent to the first defendant’s solicitors.
His Honour Judge Pelling QC, sitting in the High Court, concluded that the Claim Form had not been validly served, stating:
“…Cs had not asked any of the defendants or their respective solicitors either in the pre-action protocol letters or by any subsequent communication down to 20 July whether they were able to serve proceedings on the defendant’s solicitors. That only came much later in the following year. CPR r.6.7 is entirely clear at to what is required if service is to be effected on a solicitor…”
He went on to say:
“Turning now to the 20 July letters themselves, there is nothing within them that suggests that Cs’ solicitors were attempting to serve the Claim Form under cover of the letter of otherwise. Although a copy of the Claim Form was sent with each of the letters, it was sent for the limited and specific purpose identified in the letters namely “…For reasons of limitation, we issued proceedings against your client…on 19 May 2016, as a protective measure. For the avoidance of any doubt on your clients’ part, we enclose a copy of the issued Claim Form…”.”
In addition, Judge Pelling also said that the fact the Claimant’s solicitors had not sent a response pack or court sealed copies of the Claim Form with their letter of 20 July 2016, also indicated that the purpose of sending a copy of the Claim Form on that date was not in fact to serve it.
For those reasons, His Honour Judge Pelling QC ordered that the Claim Form had not been validly served in time and the claim was therefore struck out.
Both of these cases demonstrate the importance for the claimant solicitor of ensuring that service is effected correctly; that is in time and in accordance with the provisions of the CPR.
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