COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM:(1) GUILDFORD COUNTY COURT (His Honour Judge Hull QC)
(2) CENTRAL LONDON COUNTY COURT (His Honour Judge Butter QC)
(3) BOW COUNTY COURT (His Honour Judge Hornby)
(4) MANCHESTER COUNTY COURT (His Honour Judge Armitage QC)
(5) BURY COUNTY COURT (District Judge Duerden)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE DYSON
| (1)CRANFIELD and ANOTHER
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STAPLES UK LIMITED
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HUGHES and ANOTHER
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr C. Phipps (instructed by Messrs Clyde and Co) for the Respondent
(2) Mr J. Asif (instructed by Messrs Traymans) for the Appellant
Mr H. Hamill (instructed by Messrs Vizards Wyeth) for the Respondent
(3) Mr S. Stewart QC and Mr S. Snowden (instructed by Edward Duthie ) for the Appellant
Mr J. Ross QC and Mr N. Yell (instructed by Kenneth Elliott and Rowe) for the Respondent
(4) Mr C. Purchas QC and Mr G. Samuel (instructed by Branton Edwards) for the Appellant
Mr N. Tozzi QC (instructed by Horwich Farrelly) for the Respondent
(5) Mr G. Exall (instructed by Graham Leigh Pfeffer and Co) for the Appellant
Mr P. Gregory (instructed by Weightman Vizards) for the Respondent
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Dyson :
This is the judgment of the court.
"CPR 6.9 (1) The court may dispense with service of a document.
(2) An application for an order to dispense with service may be made without notice."
"CPR 7.6 (1) The claimant may apply for an order extending the period within which the claim form may be served.
(2) The general rule is that an application to extend the time for service must be made
(a) within the period for serving the claim form specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
(3) If the claimant applies for an order to extend the time for service of the claim form after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if
(a) the court has been unable to serve the claim form; or
(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and,
(c) in either case, the claimant has acted promptly in making the application."
"If you then look up from the wording of the rules and at a broader horizon, one of the main aims of the CPR and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. Criticism of Mr Vinos' solicitors in this case may be muted and limited to one error capable of being represented as small; but there are statutory limitation periods for bringing proceedings. It is unsatisfactory with a personal injury claim to allow almost three years to elapse and to start proceedings at the very last moment. If you do, it is in my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits. Four months is in most cases more than adequate for serving a claim form. There is nothing unjust in a system which says that, if you leave issuing proceedings to the last moment and then do not comply with this particular time requirement and do not satisfy the conditions in r 7.6(3), your claim is lost and a new claim will be statute-barred."
"Now that the disputed interpretations of the Civil Procedure Rules have been resolved by Godwin's case and by this judgment, there will be very few (if any) acceptable excuses for future failures to observe the rules for service of a claim form. The courts will be entitled to adopt a strict approach, even though the consequences may sometimes appear to be harsh in individual cases."
" (b) the fact that the claim form has actually been received by, and come to the attention of, the defendant or his solicitor through the post, by fax or by means other than personal service within the period of four months allowed by rule 7.5(2) is legally irrelevant to ascertaining the day of service, as deemed by rule 6.7; (c) if an application for an extension of time is issued by the claimant after the end of the period of service, the court will rarely have power under rule 7.6(3) to grant an extension of time and only in the most exceptional circumstances will it be proper to exercise its discretion under rule 6.9 to dispense with service;"
"55. On this point we conclude that the rule 6.9 is sufficiently widely worded to entitle the court to dispense retrospectively with service of the claim form in an appropriate case (cf the obiter view of Simon Brown LJ in Elmes v Hygrade Food Products plc  EWCA Civ 121 in paragraph 8 above). The vast majority of applications in which it will be appropriate to make an order to dispense with service will be for prospective orders sought and granted before the end of the period for service. As a general rule applications made for retrospective orders to dispense with service will be caught by the reasoning in Godwin's case. There may, however, be exceptional cases in which it is appropriate to dispense with service without undermining the principle in Godwin's case that rule 6.9 should not be used to circumvent the restrictions on granting extensions of time for service as laid down in rule 7.6(3) and thereby validate late service of the claim form.
56. In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin's case, between two different kinds of case.
57. First, an application by a claimant, who has not even attempted to serve a claim form in time by one of the methods permitted by rule 6.2, for an order retrospectively dispensing with service under rule 6.9. The claimant still needs to serve the claim form in order to comply with the rules and to bring it to the attention of the defendant. That case is clearly caught by Godwin's case as an attempt to circumvent the limitations in rule 7.6(3) on the grant of extensions of time for service of the claim form.
58. Second, an application by a claimant, who has in fact already made an ineffective attempt in time to serve a claim form by one of the methods allowed by rule 6.2, for an order dispensing with service of the claim form. The ground of the application is that the defendant does not dispute that he or his legal adviser has in fact received, and had his attention drawn to, the claim form by a permitted method of service within the period of four months, or an extension thereof. In the circumstances of the second case the claimant does not need to serve the claim form on the defendant in order to bring it to his attention, but he has failed to comply with the rules for service of the claim form. His case is not that he needs to obtain permission to serve the defendant out of time in accordance with the rules, but rather that he should be excused altogether from the need to prove service of the claim form in accordance with the rules. The basis of his application to dispense with service is that there is no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant accepts that he has received the claim form before the end of the period for service of the claim form. Apart from losing the opportunity to take advantage of the point that service was not in time in accordance with the rules, the defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document, which has already come into his hands before the end of the period for service. The claimant, on the other hand, will be prejudiced by the refusal of an order dispensing with service as, if he is still required to serve the claim form, he will be unable to do so because he cannot obtain an extension of time for service under rule 7.6(3).
59. In the exercise of the dispensing discretion it may also be legitimate to take into account other relevant circumstances, such as the explanation for late service, whether any criticism could be made of the claimant or his advisers in their conduct of the proceedings and any possible prejudice to the defendant on dispensing with service of the claim form."
"It is to be feared a disproportionate amount of time and effort may have to be expended by procedural judges dealing with applications based on this aspect of the Anderton case".
"18. In category 2 cases which, like the present (and, as I am led to believe, like a number of other appeals now awaiting hearing in this court), involve deemed late service before this court's decision in Anderton the rule 6.9 dispensing power should ordinarily be exercised in the claimant's favour unless the defendant can establish either that he would suffer prejudice (apart, obviously, from the loss of his Limitation Act 1980 defence) or some other good reason why the power should not be exercised. Merely to establish that the claimant has been guilty of avoidable delay in either the issue or the service of the claim form, or both, would not generally constitute such good reason. There will always have been some avoidable delay. Similarly, the fact that the claim looks unpromising would not generally be a good reason for refusing to exercise the dispensing power in a pre-Anderton category 2 case. In a post-Anderton case, however, the dispensing power should, in my judgment, ordinarily not be exercised in the claimant's favour. These cases, albeit within category 2 and therefore in one sense to be regarded as exceptional, to my mind fall foul of paragraph 2 of the court's judgment in Anderton. In these cases "a strict approach" should generally be adopted.
19. This approach, in my judgment, will not only provide a useful guide as to how the court may be expected to exercise its discretion in these cases, but it also follows such guidance on the point as the judgment in Anderton affords. It would mean that the court in post-Anderton cases, quite logically, would be the readier to reject the claimant's explanation for late service and to criticise his conduct of proceedings, both of these being identified in paragraph 59 of the judgment in Anderton as relevant considerations.
20. This approach also provides a complete answer to Mr Rushbrooke's superficially persuasive argument that to apply Anderton as the claimants submit is appropriate, namely, as if it creates a presumption in favour of dispensing orders in all category 2 cases, would effectively destroy the deemed service rule since virtually every case of service by physical delivery of the claim form on the last day of the permitted period would involve actual receipt in time, and thus the exercise of the dispensing power. If, as I would hold, the presumption arises in only pre-Anderton cases the deemed service rule, and the highly desirable certainty which it provides, will continue to apply in all but the most exceptional post-Anderton cases."
The generic issues
(a) Where the claim form is to be served by the court (see CPR 6.3), is the court "unable to serve" it within the meaning of CPR 7.6(3)(a) if, simply through oversight on its part, it fails to serve it in time?
(b) If the words "unable to serve the claim form" cannot be construed to embrace the circumstances described in (a), should the court be willing in principle to dispense with service in such a case?
(c) Can a claim form be served on a defendant limited company at its registered office pursuant to section 725(1) of the Companies Act 1985 ("the 1985 Act") where the defendant has previously notified the claimant that its solicitors will accept service under CPR 6.4(2)?
(d) Where a claim form is purportedly served in time, by a method of service permitted by CPR 6.2, but on the wrong person (not being in accordance with CPR 6.4), are there any, and if so what, circumstances in which the court ought to be willing in principle to dispense with service?
The meaning of CPR 7.6(3)(a)
The scope of CPR 6.9
"(1) A document may be served by any of the following methods-
(a) personal service, in accordance with rule 6.4;
(b) first class post;
(c) leaving the document at a place specified in rule 6.5;
(d) through a document exchange in accordance with the relevant practice direction; or
(e) by fax or other means of electronic communication in accordance with the relevant practice direction."
Cranfield v Bridgegrove Limited
Claussen v Yeates
"Please find enclosed Notice of Issue of Legal Aid Certificate, Particulars of Claim and Claimant's Schedule of Loss in respect of this case which was issued in October of last year.
Could you please place a copy on your file and serve the Defendant via his solicitors in due course. We attach a copy of a letter from the Defendant's solicitors confirming that they will accept service."
"12. The Defendant contended that upon a proper construction of (3)(a) it was necessary for the Court to have attempted to serve but been unable to do so, that in the present case the Court had done nothing because it was waiting for information which it had made plain that it required, that in any event Traymans could themselves have served the claim form, that although arguably the responsibility for service lay with the Court after 1 February 2000 the Court was given less than 4 days to do so, and that it could not fairly be said that the claimant had taken all reasonable steps to serve the form.
13. The following additional matters may be noted. Traymans were entitled to insist that they would serve the claim form. They must have been aware that there was no question of the Court serving it without the confirmation which the Court required. Their trainee solicitor was given a sealed copy of the form on 5 October 1999 and a copy of this was in fact sent by Traymans to Wyeth on 9 November though, in the light of the contemporaneous correspondence, Counsel for the Claimant has not sought to argue that this constituted service. (Particulars of Claim would have had to be served within 14 days unless time was extended). On 1 February 2000, Traymans' letter to the Court did not refer to the fact that the claim form had not been served and did not convey any sense of urgency. The Court receives many thousands of letters and other documents every week and it is entirely unrealistic to assume that the court will almost immediately effect service. There is no evidence as to what consideration was given to the documents handed in on 1 February but the position is that it would not have been appropriate for the court to serve the form after 5 February as time had not been extended. Although the Claimant's representatives seek to rely upon the fact that no notice of non-service was sent by the Court (under CPR 6.11), it should be borne in mind that where service is effected, the Court will send out a certificate of service under 6.14 in relation to this claim form, and notification of receipt of an acknowledgment of service in relation to the particulars of claim under 10.4. In the present case no step appears to have been taken by Traymans between 1 February and 4 April 2000. No application was at any stage issued in accordance with 7.6 (4) and P.D. 7.8, despite the requirement among other things of the need for evidence, though it may be that District Judge Langley was or would have been entitled to dispense with the filing of an application notice pursuant to 23.3(2).
14. In overall terms, District Judge Haselgrove accepted the submissions of the Defendant summarised in paragraph 12 of this judgment. I consider that he was right to accept them. The natural interpretation of 7.6(3)(a) is that the Court has attempted to serve the claim form but has been unable to do so. If support for this view is needed, it is to be found in the wording of 6.11 which requires this Court if unable to serve to "state the method attempted". Whatever sympathy one may have for the Claimant, the interpretation put forward by his Counsel involves an unnaturally strained interpretation upon the wording of the rule. The Claimant therefore fails in respect of 7.6.(3)(a). District Judge Haselgrove was in my view also correct in concluding that the Claimant did not satisfy the requirements of (3)(b) where the emphasis is on the Claimant as distinct from the Court. Here the Claimant took no step at all after 5 October 1999 to serve the claim form and I do not see that he can come within 3(b) by saying that he handed documents to the Court on 1 February 2000. It is unnecessary for me to decide the point but I should say that I have considerable reservations as to whether the claimant can be said to have complied with (3) (c) and (4)."
McManus v Sharif
"In the light of Anderton it is clear in my judgment that the court has a discretion to exercise which can be exercised retrospectively in exceptional circumstances without undermining the principle in Godwin's case. Plainly, the exercise of such discretion must have regard to the overriding principles of Part 1. In the instant case the arguments seem to me to be finely balanced. On the one hand it is said that by serving the Defendant's insurers the Claimant does not fall within the exception described in paragraph 58. The Claimant knew the Defendant's name and address, that she or her solicitors should be served within the four month period. No applications were made under CPR r. 7.6, 6.8 or 6.9. The Claimants were risking disaster by serving on the last day. The Defendants would be wrongfully deprived of the Limitation Act. On the other hand, the Defendant's insurers were aware of the claim within three months as contrasted by the facts in Anderton and had admitted liability eighteen days later. They looked after the Defendant's interests throughout and were in substantial pro-active negotiations. Medical reports had been disclosed and offers of settlement made. It was submitted that to draw a distinction between the Defendant's insurers and her legal advisers was a technical point devoid of merit when the Defendant's interests were fully protected by her insurers throughout. Moreover, applying the principles of CPR Part 1, if the claim were to be struck out the Claimant, whose claim was substantial, was not guaranteed success against her first solicitors. She would be proceeding against a party who had formerly represented her. There was likely to be considerable delay overall and much extra expense. The added complexities caused by the different nature of the claim were a factor and a re-allocation of further court resources to new proceedings should be borne in mind. I remind myself that the District Judge impliedly indicated that if he had had a discretion he would probably have exercised it in favour of the Claimant in all the circumstances. I have weighed up carefully the rival arguments which I have outlined briefly above. Both counsel put their arguments admirably. After careful consideration and reminding myself of the way the Court of Appeal considered the cases of Chambers and Dorgan in Anderton I am persuaded that the balance just tips in favour of the Claimant and that my discretion should therefore be exercised in favour of the Claimant for the reasons advanced by Mr Yell and set out fully in this judgment. Accordingly, this appeal shall be allowed."
Murphy v Staples UK
"On any view both the defendants and their solicitors had actual knowledge of the existence and content of the claim form within a few days of the deadline for service, possibly before, but possibly after it. Albeit not good service the defendants and their insurer's solicitors had actual knowledge of the claim and its content."
"In my judgment that balance comes down heavily in favour of allowing the action to proceed. The defendants will suffer the prejudice of losing a cast iron defence to a claim of which they had fair and timely notice. Service was procedurally ineffective, but was not demonstrably actually ineffective. The defendant's ability to contest the claim (on liability and quantum) on its merits, is unaffected by the claimant's decision to proceed at the very last moment. There is no evidence to suggest that that decision was made on tactical grounds, that is to say with the intention of causing problems for the defendants in their defence to the claim."
"30. In my judgment the circumstances are exceptional. This was a technical error. It was easily avoidable, but has no more than technical consequences for the defendants compared with potentially very grave consequences for the claimant. Any relevant delay was insignificant. The claimant and/or his solicitors have not performed their obligations under the rules as to time, as to service or in this appeal with any great credit. They have been fortunate in what may be seen as the merciful decision of the Court of Appeal in Anderton. Although not wrong at the time it was made, I allow the claimant's appeal against the district judge's order on the basis that the decision was wrong having regard to the subsequent declaration of the court's powers concerning dispensing with service of a claim form, by the Court of Appeal in Anderton."
Accordingly, he allowed the claimant's appeal.
"A document may be served on a company by leaving it at, or sending it by post to, the company's registered office".
"Where an Act authorises or requires any document to be served by post then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
"(2) A company may be served by any method permitted under this Part as an alternative to the methods of service set out in
(a) section 725 of the Companies Act 1985 (service by leaving a document at or posting it to an authorised place);
(b) section 695 of that Act (service on overseas companies); and
(c) section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain).
"(1) A document to be served may be served personally, except as provided in paragraph (2).
(2) Where a solicitor
(a) is authorised to accept service on behalf of a party; and
(b) has notified the party serving the document in writing that he is so authorised,
a document must be served on the solicitor, unless personal service is required by an enactment, rule, practice direction or court order.
(3) A document is served personally on an individual by leaving it with that individual.
(4) A document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation."
"I do not see any difficulty in holding that the kind of ad hoc agreement in question is legally effective. If one party, knowing that another wishes to serve process upon him, requests or authorises the other to do so in a particular way which is outside the Rules and the other does so, then, unless the Rules themselves prohibit consensual service, the party so served cannot be heard to say that the service was not valid. Thus, I have no doubt that, if the circumstances of the present case had come before the court in 1898, the validity of the service would have been affirmed. The crucial question is whether subsequent changes in the Rules of the Supreme Court have introduced just such a prohibition of consensual service outside the Rules as was unsuccessfully contended for in Montgomery, Jones & Co v Liebenthal & Co  1 QB 487."
Smith v Hughes and Motor Insurers Bureau
"6.8 (1) Where it appears to the court that there is a good reason to authorise service by a method not permitted by these Rules, the court may make an order permitting service by an alternative method.
(2) An application for an order permitting service by an alternative method
(a) must be supported by evidence;
(b) may be made without notice.
(3) An order permitting service by an alternative method must specify
(a) the method of service; and
(b) the date when the document will be deemed to be served."
"However generous a reading one makes of the rules and however persuasive the Court of Appeal's decision in Anderton may be and I do not seek for a moment to detract from that; I do recognise it as a very useful decision in procedural matters as it accentuates the need for certainty but however persuasive that may be, to purport to serve at the last known address two years and some after the defendant has vacated it without making further inquiry cannot be doing justice between the parties. It cannot be expected that the first defendant will get to know of those proceedings and that is the purpose of service."
In the result, he held that Mr Hughes had not been served.
"The CPR do not make it clear whether service by post to a defendant's last known address at which he no longer resides, and the defendant does not in fact receive the claim, is good service".
Cranfield v Bridgegrove
Defendant's appeal dismissed; defendant to pay costs of the appeal, such costs to be assessed on the standard basis if not agreed.
Smith v Hughes
Appeal allowed; respondent do pay appellant's costs both here and below, such costs to be subject of a detailed assessment if not agreed.
Claussen v Yates
Appeal dismissed; the claimant do pay the defendant's costs of the appeal, such costs to be assessed on the standard basis if not agreed.
Mcmanus v Sharif
Appeal allowed; the claimant is to repay the interim payment of £50,000 by 4.00pm on 02/06/03; the claimant do pay defendant's costs of the appeal, save that the defendant should pay the claimant's costs of and incidental to service of the second statement; all costs to be assessed if not agreed; application for permission to appeal to house of lords refused.
Murphy v Staples
Appeal dismissed; the defendant is awarded costs in the proceedings before the district judge; the claimant is awarded costs of the appeal and costs before the judge; such costs to be assessed if not agreed.