• home page
• about the firm
• press office
• contact us
• business sectors
• practice areas
• seminars
• publications
• recruitment
• trainees
• technology

terms & conditions

• legal updates
• bulletins
• service overviews
• transaction updates
• consultation papers
• library
• podcasts
• join our mailing list

|

Service – The Debate Continues

The Court of Appeal in Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656 acknowledged that the interpretation and application of CPR 6.9 (power of the Court to dispense with service) and CPR 7.6 (extension of time for serving a claim form) continued to cause difficulties despite recent attempts to clarify the relevant principles.

 

Review of the recent cases:

 

Vinos v Marks & Spencer [2001] 3 AER 784, decided that the Court had no power to extend time for service after the time limit for service of the claim form had expired where the circumstances fall outside CPR 7.6(3).

 

Elmes v Hygrade Food Products Plc [2001] EWCA Civ 121 held that where a claim form had been served in time but incorrectly (in that case on the Defendant's insurers not the Defendants), the Court does not have power under CPR 3.10(b) or CPR 6.8 to retrospectively remedy the error by deeming good service had been effected by an alternative method not permitted by the rules.

 

Nanglegan v Royal Free Hampstead NHS Trust [2001] 1 WLR 1043, reached a similar conclusion (in that case service had been incorrectly effected on the Defendant as opposed to its nominated solicitors whose address had been given for service).

 

Finally, in Anderton v Clwyd County Council [2002] EWCA Civ 933 the Court of Appeal considered that there would be very few (if any) acceptable excuses for failures to observe the rules for service of a claim form, stating that in the future the Courts will be entitled to adopt a strict approach. Lord Justice Brown endorsed this approach in the July 2002 edition of Civil Procedure News. He commented that in a post-Anderton case the dispensing power should not ordinarily be exercised in the Claimant's favour, despite the cases on the face of it appearing to be 'exceptional'.

 

The five cases considered by the Court of Appeal

 

Cranfield v Bridgegrove Ltd.

The Claimants sent two claim forms to the Court requesting them to serve on the Defendant. The Court received the claim forms but failed to serve them mistakenly keeping the claim forms on the Court file. An application to extend time for service pursuant to CPR 7.6(3) was refused by the District Judge, but allowed on appeal by the Circuit Judge, who held that the oversight of the Court fell within the meaning that the Court had been 'unable' to serve. The Court of Appeal refused to read CPR 7.6(3) in a limited context and held that the words 'has been unable to serve' included all cases where the Court has failed to serve including a mere oversight on its part. In such cases the Court had jurisdiction to extend time for service. However, the Court of Appeal did make comment that if in the circumstances of the case Court neglect has only contributed to the failure to serve in time, the main reason being delay on the part of the Claimant, in such cases the Court will often not decide to exercise its discretion to extend time for service.

 

Claussen v Yeates

The Claimant's solicitors sent a claim form to the Court with the Defendant's address for service being marked 'c/o A E Wyeth & Co'. The Claimant's solicitors intended to effect personal service but the Court took it upon themselves to effect service, but held back the claim form requesting written confirmation from the Defendant's solicitors that they were authorised to accept service. They responded forthwith. Despite two ex-parte Orders extending time for service by the District Judge, nine months later the claim form still had not been served. The District Judge allowed the Defendant's application to set aside the ex-parte Orders and an appeal to the Circuit Judge was dismissed. The Court of Appeal rejected the Claimant's appeal and an application to dispense with service finding that the real reason why the claim form had not been served in time was not the failure of the Court but failure on the part of the Claimant's solicitors.

 

McManus v Sharif

A claim form was issued shortly before the end of the limitation period and just before the last date for service an unsigned, unsealed copy was sent to the Defendant's insurers 'by way of service'. There was no agreement by the insurers to accept service. Although the District Judge refused an application by the Claimant to extend time for service, the Circuit Judge allowed the appeal by exercising his discretion to dispense with service of the claim form. The Court of Appeal firmly held that the Circuit Judge should not have made an Order dispensing with service. The Court, they said, should be slow to dispense with service retrospectively and the discretion should only be exercised in exceptional circumstances. The facts of this case, service of an unsigned, unsealed claim form on insurers who had no authority to accept service, fell outside the criteria of 'exceptional' in Anderton (supra) which covered cases where there had been an ineffective attempt to serve a claim form in time but the Defendant has had his attention drawn to the matter within 4 month time limit. The Court of Appeal recognised that there were cases where a wide discretion may be exercised, but not where there had been significant departures from the CPR.

 

Murphy v Staples UK

The facts are similar to Nanglegan (supra). The Defendant's solicitors wrote to the Claimant's solicitors prior to service confirming they had authority to accept service of proceedings. However, proceedings were served at the Defendant's registered office. The District judge refused an application to dispense with service but it was allowed on appeal to the Circuit Judge. The Court of Appeal considered the application of s.725 of the Companies Act 1985 and held that a Claimant may serve the claim form on a Defendant company by leaving it or sending it by post to the registered office or by one of the methods set out in CPR 6.2(2). If a Defendant has given an address for service the Claimant may then choose whether to follow service prescribed by the Companies Act or the CPR. The appeal was dismissed therefore on the grounds that there was no binding promise to serve on the Defendant's solicitors pursuant to CPR 6.4(2) and service on the registered office was good service.

 

Smith v Hughes & the MIB

The Claimant brought a personal injury claim against Hughes, who was uninsured. The Motor Insures Bureau became involved. The MIB were made aware that the Defendant was no longer living at the address he had given and passed this information on to the Claimant's solicitors (although in a letter relating to a different claim by the owner of the vehicle, the letter being placed on a different file). The Claimant's solicitors served proceedings on the Defendant at his last known address pursuant to CPR 6.5(6). The District Judge held that service was invalid – the Claimant's solicitors must have known that posting the claim form to that address would not result in service. The Court of Appeal held that CPR 6.5(6) does not say that it is not good service if the Defendant does not in fact receive the document. Nor could they see any basis for imparting that if the Claimant knew or believed that the Defendant no longer lived at that address service was not effective. If that had been intended to be the case, the Court of Appeal held that the rules would have said so in clear terms. Where there was no solicitor acting for a party and the party had not provided an address for service, service of proceedings at that party's last known address is effective.

 

The guidance of the Court of Appeal is clear – Claimant's solicitors can no longer be complacent on the issue of service. The golden rule seems to be : serve promptly and serve properly!