Does the #OverridingObjective require proposed defendants to correct their opponent’s ignorance of the rules for service, and thereby give up a valid limitation defence?
By a claim form issued on 19 June 2017, the Appellants sought to bring proceedings against the Respondent. The alleged causes of action accrued on 20 June 2011 and became potentially time-barred from 20 June 2017. Pursuant to CPR r 7.5(1), the claim form then should have been served by no later than midnight on 19 October 2017.
The claim form, particulars of claim, and various annexes to it and a response pack were sent by the Appellants’ solicitors, ‘CB’, to the Respondent’s solicitors, ‘M&R,’ by first class post on 17 October 2017 by way of service. These were received on 18 October 2017.
The same documents were also sent by email to a partner at M&R, at 10.37 am on 17 October 2017. A “read receipt” was received by CB at 10.43 am that day, acknowledging receipt of the email and confirming that it had been read. The partner, however, having satisfied himself that the purported service was ineffective, neither considered that he was obliged to notify CB of this. He then advised the Respondent on the matter and took instructions not to advise CB in this way.
The claim form expired at midnight on 19 October 2017 and M&R subsequently wrote to CB on 20 October 2017 stating that service was not valid for the following reasons: (i) the claim form had not been served on the Respondent; (ii) M&R were not instructed to accept service; and (iii) neither M&R nor the Respondent had ever confirmed in writing to CB that M&R had been authorised to accept service.
M&R contended therefore that the claim form had expired and with it, the proceedings. M&R put CB on notice that the Respondent would apply for a declaration that the court therefore lacked jurisdiction to hear the claim.
Steps were taken immediately by CB to seek to serve on the Respondent by courier, first class post and email, which were delivered just after 11am on 20 October 2017, however, both the claim form and limitation period had by then expired.
Thus, the question was whether the court should exercise its power retrospectively to validate service under CPR 6.15. Master Bowles did so in a written decision; HHJ Hodge QC, sitting as a Judge of the High Court, allowed an appeal from the Master, set aside the claim form and dismissed the action.
Court of Appeal
The present grounds of appeal were that the Judge was wrong to hold that: (i) the Master had erred in finding that the Respondent’s conduct (in not notifying the Appellant that M&R was not authorised to accept service) was contrary to CPR 1.3; (ii) the Master erred in finding such conduct was “game playing”; and (iii) the facts did not afford “good reason” to permit alternative service.
Asplin LJ (with whom Nicola Davies and Bean LJJ both agreed) began with Barton v Wright Hassall LLP  UKSC 12, which had been handed down after the Master’s own decision in the present case. Asplin LJ found that the facts of the two cases could not be distinguished, and therefore considered as applicable the principles set out by Lord Sumption JSC (in the 3:2 majority) in Barton regarding the exercise of discretion under CPR 6.15(2):
- The CPR contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. Of these, CPR 3.9 is the most significant, but CPR rule 6.15 is ‘rather different’ to relief from sanctions; it is directed specifically to the rules governing service of a claim form and gives rise to special considerations. The main difference with CPR r 3.9 is that there is much less of a disciplinary factor; the rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all.
- ‘Good reason’ for validating the non-compliant service of a claim form is essentially a matter of factual evaluation, which does not lend itself to over-analysis or copious citation of authority. Generally, the main relevant factors are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules; (ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired; and, (iii) what if any prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances.
In cases such as Barton and the present appeal, therefore, even if a proposed defendant’s solicitors reasonably could advise a claimant of invalid service in time for the situation to be rectified, they are not under a duty to do so and, furthermore, cannot properly do so without taking instructions from their clients and advising them that the result may be to deprive them of a limitation defence. In such circumstances, it would be highly unlikely that such client would agree to this. A claimant who, therefore, ‘courts disaster’ by issuing the claim form at the very end of the limitation period, then making no attempt to serve it until the very end of its period of validity can have only “limited claims to the court’s indulgence.”
Asplin LJ therefore dismissed the appeal, holding that (i) the Judge had not erred in finding that Lord Sumption implicitly took the view that it was not inappropriate for the Respondent to refuse to authorise M&R advising the Appellant as to service; (ii) there had not, therefore, been any technical game-playing, especially given that the partner at M&R properly considered the authorities, advised his client and took their instructions; and (iii) the Judge properly considered as a matter of fact all the circumstances, including whether the Appellants had ‘courted disaster’ by waiting until the end of the limitation period to serve the proceedings.
This case is an interesting reminder that, although the CPR and the overriding objective are intended to effect a culture change in the conduct of litigation, there are limits to the extent of the duties imposed by CPR 1.3 upon parties; rules which govern conduct in one context do not necessarily apply in each and every aspect of litigation. In particular, there is no duty upon proposed defendants to give up a valid limitation defence through correcting their opponent’s ignorance of the rules in an application to validate service under CPR 6.15.