UK: Normal Service - Hills v Struth

Last Updated: 14 October 2013
Article by Jane Lemon

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.

www.keatingchambers.com

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.