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Thorne v Lass Salt Garvin, High Court, 28 January 2009

3 March 2009
The issues

Service by fax – Part 6 Civil Procedure Rules – amendment of Notice of Appeal.

The facts

In 2000 the Claimant instructed the Defendant to represent him in a dispute concerning the interpretation of the Will of his mother and that of his sister. Litigation followed which was concluded in 2002. The Defendant firm acted for the Claimant in that litigation until 2002. Following the litigation there was no suggestion of any claim for professional negligence on behalf of the Claimant against the Defendant and the first that the Defendant knew of it was when it received a Claim Form by fax on the 6th June 2008. The Claim Form had been issued on the 31st January 2008. The final date for service was the 13th May 2008 therefore but on the 29th May 2008 the Claimant sought an Order extending time for the service of the Claim Form. The Master granted an extension until the 6th June 2008, specifying that the time for service of the Particulars of Claim should be extended to the 4th July 2008. On the 30th May 2008 the Claimant contacted a solicitor at Hodge Jones & Allen. She told him to serve the Claim Form as soon as possible and let her see the papers.

She then went on holiday. On her return she telephoned the Claimant who told her that he had not got any further time for serving the Claim Form and that it needed to be served on that day, the 6th June 2008. She told him to serve the Claim Form and come to the office. At 3pm he arrived at Hodge Jones & Allen’s office. The solicitor drafted a letter to the Defendant and faxed it to them at 3.15pm together with the Claim Form and the Order of Master Eyre. On the 13th June 2008 a Partner in the Defendant firm signed an Acknowledgement of Service on which he wrote “We decline to acknowledge purported service by fax as it did not comply with the requirement of CPR 6.2 and Practice Direction 6 and the subsequent purported postal service was out of time”. He did not tick the box indicating an intention to contest jurisdiction. The Master made an Order declaring purported service of the Claim Form by fax invalid and ineffective and refused to make an Order dispensing with service. The matter came before the High Court Judge on Appeal.

The decision

This matter was governed by CPR 6.2(1)(e) and Practice Direct 6pd.3. Under the Practice Direction a document could be served by electronic means if the party who was to be served, or his legal representative, had previously indicated in writing willingness to accept service by electronic means and the fax number, email address or electronic identification to which it should be sent. For the purposes of a legal representative was a sufficient indication of willingness to be served if the fax number was set out on the writing paper of the legal representative or if an email address or fax number was set out in a statement of case or a response to claim filed with the Court.

The Claimant had argued that in this particular case the Defendant had a dual capacity. It was not merely a party but it was also a legal representative. The Master had been correct in his reasoning that it was not possible to regard the Defendant firm as being its own legal representative in circumstances where it was unaware of the issue of the Claim Form and unaware that it was about to be served on them on the afternoon of the 6th June 2008. The Claim Form was not therefore validly served.

Should The Court Dispense With Service?

The Court should dispense with service only if the criteria laid down in Kuenyehia v International Hospital Group Ltd were met. In other words, the Court required it to be an exceptional case and it was necessary for the Claimant to have either made an ineffective attempt to serve in time by a permitted method or had served in time in a manner which involved a minor departure from one of those permitted methods. This was not an exceptional case and it would be unjust to dispense with service. This was because the attempt at service was made on the last possible day permitted and was not in accordance with the Rules. No prior notification of the claim had been made. The Claimant had been advised to serve the Claim Form by the solicitor at Hodge Jones & Allen on the 30th May 2008 and had not done so. The Claimant lived no more than a comparatively short tube or bus ride from the Defendant’s offices and even on the 6th June 2008 it would have been possible to serve the Claim Form at those offices.

The Claimant sought to argue a new point, namely that the Defendant had filed an Acknowledgement of Service and had not made an attempt to dispute the Court’s jurisdiction to try the claim within 14 days after filing it. This point arose by virtue of a decision of the Court of Appeal in Hoddinott v Persimmon Homes (Wessex) Ltd.

The Court had the power to amend a Notice of Appeal under CPR 52.8. A note to the White Book suggested that if the amendment raised a point which was argued in the lower Court and the amendment was sought timesly, such an amendment might be permitted. However, this amendment sought to raise a new point. A new point arose out of a decision of the Court of Appeal that had been in circulation for many months prior to the Hearing before the Master. In short, the point had not been raised before because the Claimant’s lawyers had not realised the significance of the decision in Hoddinott. It could not be a proper basis for granting permission to amend a Notice of Appeal to raise a new point not taken before the Court below that a legal representative of the Claimant was unaware of the significance of the Court of Appeal published many months before the Hearing at first instance.

The Application would be refused.

The Appeal would be dismissed.

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