Rules are Rules: serving correctly

The courts are known to be robust on the issue of the parties to proceedings complying with the court rules, practice directions and limitation periods – and rightly so. If you are not fully familiar with the rules on service of claim forms and do not understand the implications of errors in service, two recent rulings are vital reading.

The robust approach of the courts is illustrated in a recent case where the court ruled against a claimant who made an error in serving proceedings. The ruling in Woodward v Phoenix [2019] EWCA Civ 985 is an important case for litigators and a salutary reminder of the need to ensure accuracy in preparing and serving proceedings and other court pleadings.

At issue was when it is appropriate, on an application for retrospective validation of service under Civil Procedure Rules 6.15(1) and (2), to allow a potential defendant to take advantage of a mistake on the part of a would-be claimant giving rise to defective service where any new claim would be statute-barred.

The claimants had brought a claim for breach of contract and misrepresentation and were seeking damages of more than £5m. They purported to serve the claim form and particulars of claim on the defendant’s solicitors by first class post and by email - but without confirmation that the solicitors were authorised to accept service (in the event, they were not so authorised). The proceedings had not also been served on the defendants.

Having received the emailed documents, the defendant’s solicitor was satisfied that the purported service was ineffective. He decided he was not obliged to notify the other side of their mistake and then took instructions from the defendant - who told him not to inform the claimants of the mistake. The claim form itself expired unserved the following day at which point the limitation period had also expired.

And it was on that following day that the defendant’s solicitors told the claimants that service had been defective. The claimants took immediate steps to serve proceedings on the defendant directly.

The claimants then sought a declaration that their purported service on the defendant’s solicitors had been good service; or alternative that service should be dispensed with or the time for service extended.

At first instance the court ruled that the defendant’s solicitors should have mentioned the error; but both the High Court and the Court of Appeal said it was not obliged to do so. The Court of Appeal ruled that law firms who are incorrectly served with court proceedings are under no obligation to tell the claimant’s solicitors of their error.

The ruling was too bad for the claimants whose law firm had delayed serving proceedings until the expiry of the limitation period. The result was, although proceedings were served within the limitation period – the defendants sat on the error until after the claim form itself had expired.

Not the first time!

This is not the first time the court has made a similar decision. In Barton v Wright Hassall LLP [2018] UKSC 12, (which was relied on heavily in the above case) the claimant had purported (as a litigant in person) to serve the claim form on the other side’s solicitors by email, without obtaining confirmation that they were willing to accept email service. This was not good service under the Civil Procedures Rules 6APD.4. This meant the claim form expired unserved the following day.

The court refused to exercise its power retrospectively to validate service. The key “problem” was that the claimant had made no attempt to serve in accordance with the rules - all he did was “employ a mode of service which he should have appreciated was not in accordance with the rules”.

The result was that any fresh attempt to start proceedings would be time-barred.

Counsel for the claimant argued that the defendant’s solicitors (Berrymans) had been “playing technical games” with the claimant. However, the sole basis for that submission, said the Supreme Court, was that they had taken the point that service was invalid and after the purported service by email, there was nothing they could reasonably have been expected to do which could have rectified the position as the claim form expired the next day.

In any case, they were under no duty to advise him to re-serve it properly even if they had realised in time that the service was invalid. Furthermore, they could not have properly done so without taking their own client’s instructions and advising them that the result might be to deprive them of a limitation defence. The court commented that it was “hardly conceivable that in those circumstances the client would have authorised it”.

So back to Woodward: the appeal court did not accept there was any “technical gameplaying” in this case. Furthermore, commenting on the Barton ruling, Asplin LJ said: “It seems to me that the emphasis placed upon the prejudice which would arise and the lack of a duty to warn in such circumstances is entirely inconsistent with a positive duty under CPR r 1.3.”

What about litigants in person?

As far as LIPs are concerned, the rules apply as for those who are legally represented. In his judgment in Barton, Lord Sumption said: “Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.” He rejected the claimant’s argument that the rules of service as to issue were “inaccessible and obscure” because they are accessible on the internet.

In any case, by the relevant time the claimant was “an experienced litigant” and on his own admission he knew about limitation and that not all solicitors accepted service by email - but he relied on his own assumption anyway.

Where does this leave the parties?

The fundamental takeaway is that it is for the parties serving claim forms to comply with the rules as to service and accept the consequences if they are served in error.

Delaying tactics serve their purposes in some circumstances but there are clear risks in waiting until the expiry of a limitation period before serving a claim form because of the serious consequences of an error in service. Solicitors who fail to comply could face expensive negligence claims so it is vital for litigators to keep a clear diary of key dates and prepare well ahead of them.

 

 

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