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Kuenyehia v Lartisan Services Incorporated and Another

31 January 2006
The issues

Claim Form – Service Of Claim Form – Dispensing With Service – Attempting To Serve By Fax Without Consent Of The Recipient

The facts

The Claimant issued a Claim Form against the Defendant. The parties had been in correspondence by fax. The Defendant’s solicitors had no instruction to accept service. On the last day on which service was permitted the Claimant’s solicitors sent a copy of the Claim Form to the Defendant’s solicitors by hand and faxed a copy of the Claim Form to the Defendant’s Legal Department.

The fax number used was the fax number recorded in the Defendant’s letters for its Rickmansworth office. The Defendants argued that the Claim Form had not been properly served and proceedings were ineffective.

The Claimants issued an application for an order that service of the Claim Form had been effected either by its physical delivery to the Defendant’s solicitors or by a copy having been faxed to the Defendant’s Rickmansworth office or that time be extended for service or that service be dispensed with.

The matter came before the Master and thereafter the Judge. The Judge concluded that the Claimant’s solicitors had not served the Claim Form in accordance with CPR Part 6. Service on the solicitors was in effective because they had not been given instruction to accept service nor had their address been given by the Defendant as its address for service.

Service on the Defendant’s Rickmansworth office by fax was ineffective because paragraph e of Rule 6.2. (1) identified the permitted methods of services under the CPR and required service by fax to be “in accordance with the relevant practice direction”. In that connection paragraph 3.1(1) of the Practice Direction stated that the party to serve must have given written confirmation that he is wiling to accept service by fax.

Time for service under Rule 7.3 could not be extended because the strict requirements had not been satisfied by the Claimant. The Judge however decided that the Claimants could succeed in the application if he exercised his power to make an Order dispensing with service of the Claim Form under Rule 6.9. In relation to the service of the Claim Form on the Defendant’s solicitors, the Judge believed it was not appropriate to grant relief. However he decided that he could and should grant relief in the light of the faxing of the Claim Form to the Defendant’s offices. He reached this conclusion on the basis that the failure to obtain the Defendant’s written consent for service of the Claim Form by fax was at least on the facts of this case a comparatively minor departure from the requirements of Rule 6.2(1).

The Defendant appealed to the Court of Appeal.

The decision

It required an exceptional case before the Court would exercise its power to dispense with service under Rule 6.9. It was not possible to list all the circumstances and factors relevant to the decision to dispense with service of a Claim Form. The power however was unlikely to be exercised except where a Claimant had either made an ineffective attempt to serve by one of the methods permitted by Rule 6.2 or had served in time in a manner involving a minor departure from one of the permitted methods of service.

The Judge had therefore asked the right question in asking whether the service of the Claim Form by fax on the Defendant was a minor departure from the Rule or Practice Direction. He had however given the wrong answer to the question. It could not be characterised as no more than a minor departure. Moreover he had not asked whether the case was an exceptional one. Had he done so the answer would have been no. Time limits in the CPR particularly with regard to service of the Claim Form were to be strictly observed. Prejudice to the Defendant was a reason for not dispensing with service. However the absence of prejudice could not usually if ever be a reason for dispensing with service.

Appeal allowed.

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