Horn v Dorset Healthcare NHS Trust, Bristol County Court, set aside

Nanglegan v The Royal Free Hampstead NHS Trust – Service – Serving On The Part On The Defendant Rather Than The Defendant’s Solicitors – Where The Defendant’s Solicitors Had To Notify Claimant’s Solicitors Of Their Interest

The insurers nominated Veitch Penny as their solicitors but provided only a DX number which had in fact one digit misplaced. On 25 July the Claimant’s solicitors wrote to the Defendant’s insurers stating that they have not heard from Veitch Penny and that if they did not receive confirmation of instructions they would serve the Claim Form on the Defendants. The letter did not arrive so the Claim Form was served on the Defendants. After service of the Claim Form Veitch Penny received instructions to accept service. The Defendants argued that service had not taken place since the Claimant had been required to serve on nominated solicitors following Nanglegan v The Royal Free Hampstead NHS Trust. The Claimants argued that they were not obliged to serve on Veitch Penny firstly because the address was wrong, secondly because Veitch Penny had not in fact been instructed and therefore they could not be said to be solicitors acting for the Defendant and finally because according to the notes in the White Book service is only required where the nominated solicitors have notified the Claimant’s solicitors that they are instructed. The matter came before His Honour Judge Hughes QC on Appeal.

Service had not been effective. The address given of the Defendant’s solicitors was not so materially different from the correct address as to prevent it being the solicitor’s business address as required by CPR 6.5 (3) (a). Moreover the phrase “his solicitor” in CPR 6.5 (3) (a) includes solicitors nominated even if not instructed. CPR 6.5 did not provide that a Claim Form could only be validly served if the solicitor had notified the Claimant’s solicitors that he had been instructed and the notes of the White Book were wrong. Consequently service

had not been effected. The Claimants applied for an order dispensing of service but the Judge found that this was not a truly exceptional case.

By Mark Fowles, Head of the Insurance Department at Veitch Penny.
Tel: +44 (0)1392 288328, Fax: +44 (0)1392 410247, Email: markfowles@vpinsurance.net. For further information please contact James Ruttledge on jamesruttledge@veitchpenny.co.uk.

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