In this recent decision of Ramsey J, the TCC considered whether sending a photocopy of a claim form by post or DX amounts to valid service. In addition, there is a useful comparison in the judgment of the court's approach to relief from sanctions under the old CPR 3.9 and the new version, which applies to all applications made post 1st April 2013.
The claimant was a building contractor engaged by the defendants to demolish and rebuild their house pursuant to a JCT Intermediate Form of Contract. Shortly before Christmas 2012, the final certificate was issued. Given the potentially conclusive effect of that certificate, the claimant commenced proceedings without having complied with the Pre-Action Protocol and in circumstances where it was not in a position to serve particulars of claim. As a result, the claim form was not immediately served on the defendants.
Instead, following a phone call in which the claimant's solicitor proposed that proceedings be stayed to observe the Protocol, he sent a letter by DX to the defendants' solicitor stating that it was enclosing "a copy of the issued Claim Form" and looking forward to receiving a response to the proposed stay. A photocopy of the sealed claim form accompanied the letter.
The defendants' solicitor responded several weeks, later accepting the claimant's solicitor's letter as service of the claim form and arguing that the claimant had failed to serve its particulars within the required 14-day period. The claimant was told either to serve particulars within a further 14 days or make acceptable proposals in relation to a protocol meeting, failing which the defendants would apply to have the claim struck out. The claimant's solicitor immediately responded, arguing that the claim form had not been served but unfortunately the defendants' solicitor never received that letter.
The claimant's solicitor assumed that the subsequent lack of response indicated an acceptance of his position in relation to service and took no further protective measures.
However, the defendants' solicitor, having not received the letter, proceeded to make a successful application to strike out the claim form without the need for a hearing. The claimant then applied to vary or set aside that order and, in the alternative, to extend time for service of the particulars.
Had the claim form been served?
The first issue that the court had to decide was whether sending a photocopy of the sealed claim form by DX amounted to good service. If it did not, then the particulars were not yet due for service and the strike out application was misconceived.
The claimant submitted that the claim form that has to be served when serving by post or DX is the form issued by the court and not a photocopy of it. It relied upon the notes at 6.2.3 and 6.3.13 of the White Book, together with obiter dicta of the Court of Appeal in Murphy v Staples UK Limited [2003] 1 WLR 2441, in which the claimant sent the sealed claim form by first class post to the defendant's registered office and, in addition, sent a photocopy to the defendant's solicitors.
The Court of Appeal decided that service on the defendant's registered offices constituted good service but went on to consider the position if service should have been on the solicitors:
"...the only flaw in the process was that (the claimant's solicitor) sent a copy of the issued form, rather than the original document itself. In this regard, it is to be noted that, if (the claimant's solicitor) had sent the issued claim form to (the defendant's solicitor) by fax, that would have been good service.
A document received by fax is a copy document...(the defendant's solicitor) received a document served by one of the permitted methods of service (i.e. by first class post on the right person at the right address) but it was a copy of the document that should have been served..."
The defendants argued that the CPR does not expressly provide that a claim form bearing an original seal has to be served but rather envisages that it does not because it permits service by fax or other means of communication.
They further relied upon Weston v Bates [2013] 1 WLR 189, a first instance decision in which service by email out of the jurisdiction was held to be good service.
The court was referred in that case to the decision in Murphy but the judge found that although reference was made in that decision to the "original" claim form, there was no discussion as to what was meant by that phrase.
The judge went on to find that so far as the CPR is concerned "what constitutes a claim form is a matter of substance. The words 'claim form' are not a reference to a particular hard copy of a document".
In addition, the defendants relied upon the decision in Asia Pacific v Hanjin Shipping [2005] EWHC 2443, in which the court held that the question of whether a claim form had been served must be judged objectively by looking at what was done and said by the parties.
The defendants argued that if a claim form is delivered in a manner provided for by the rules it is served unless the claimant makes clear he is not in fact serving it, which was not done in this case.
Having considered the above arguments, Ramsey J held that, as a general rule, the claim form is the form issued and sealed by the court.
He relied in support upon CPR 7.2(1), which provides that proceedings are started when the court issues a claim form, and CPR 2.6(1), which provides that the court must seal the claim form on issue.
He therefore went on to find that when CPR 6.3(1) states that a claim form may be served by any of the prescribed methods, as a general rule it is the document issued and sealed by the court that is the relevant claim form.
However, there are exceptions to this rule. When a claim form is served by fax or other electronic means, then necessarily the original will not be served. A claimant serving a claim form by such a method would additionally have to serve the original sealed version if it were not for paragraph 4.3 of Practice Direction 6A, which provides that service of a hard copy in such circumstances is not required.
Ramsey J held that great weight must be given to Murphy and it was evident from the judgment of Dyson LJ in that case that a copy of the claim form was not sufficient and that what was required was a document originally issued and sealed by the court. For those reasons, he held that "in this case the photocopy of the claim form which was sent by Document Exchange...was not the document required for service to be achieved under CPR 6.3".
As to Weston v Bates, he noted that the question in that case was whether the order granting permission for service out of the jurisdiction required service of the original sealed claim form.
When deciding that it did not, the judge accepted that the requirements for service within the jurisdiction could not be imported into the requirements for service out of the jurisdiction. It was no more than an aid for construction.
Ramsey J then considered the position if he was wrong and the claim form was a version capable of amounting to good service.
He applied the objective test referred to in Hanjin and found that what had been done and said by the parties in this case could not be construed as showing an intention to serve.
Should an extension be granted for service of the particulars of claim?
The court then went on to consider the alternative application for an extension of time pursuant to CPR 3.1(2)(a) on the assumption that it had come to a different view and found that the claim form had been served. In such circumstances, that application would have been made after time for service of the particulars had expired and therefore the provisions of CPR 3.9 relating to relief from sanctions applied (Roberts v Momentum Service [2003] 1 WLR 1577).
However, given that the application predated 1st April 2013, the recent amendments to CPR 3.9 were not applicable and instead the checklist set out in the old version applied.
Ramsey J held, with some hesitation, that an extension would be granted, given the unusual circumstances of the case. The fact that the claimant's solicitor was seeking agreement of a stay meant that it was inappropriate for him to incur costs drafting particulars and his missing letter to the defendant's solicitor provided an explanation for the delay in making the application.
However, he went on to state that he was "quite clear that given the change to the overriding objective and to CPR 3.9, if this application had been made after 1 April 2013, it would not have been granted. The need for compliance with the rules, practice, directions and orders now forms an essential part of the CPR".
This seems like a harsh result given that the failure to comply was not intentional and the missing letter effectively deprived the claimant of the opportunity to take protective measures to avoid a strike out application.
It underlines the strict approach the court is likely to take when dealing with any application for relief from sanctions after 1 April 2013 and the importance of seeking extensions of time before time limits have already passed.
The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.
