Late service of the claim form: a bright side to the judicial approach?

Background

In the recent case of Brightside Group Ltd v RSM UK Audit LLP [2017] EWHC 6 (Comm), the High Court considered the implications of serving a claim form outside of the period prescribed by a notice served pursuant to CPR 7.7.

(As a reminder, CPR 7.7 entitles a defendant to serve a notice on a claimant when a claim form has been issued but not yet served. The notice requires a claimant to either serve the claim form or discontinue the case. If the notice is not complied with a court may dismiss the claim or make any other order it sees fit.)

The Claimant issued a claim form on 26 April 2016 but did not effect service immediately.

On 27 May 2016 the Defendant gave notice to the Claimant to serve the claim form or discontinue the claim within 14 days (by 10 June 2016).

A trainee solicitor acting on behalf of the Claimant went to the Defendant’s offices on 10 June 2016 to effect service. Unfortunately she was unable to gain entry so she left the documents with a member of security on reception.

The Defendant then made an application to dismiss the claim on the basis that the claim form had not been served at all or, in the alternative, that it had not been served in time.

The Defendant’s reasoning was that the claim form had not been left at “the relevant place” to effect service pursuant to CPR 7.5. In the alternative, it was argued that the claim form was not deemed served until the second business day after 10 June 2016 pursuant to CPR 6.14 and was therefore served late.

The Defendant further submitted that the Court’s approach in relation to late service pursuant to CPR 7.7 should be the same as if service had not been effected at all pursuant to CPR 7.5. It followed that  as there was no good reason for the late service the claim should be dismissed.

The Claimant argued that the claim form was left at “the relevant place” and that, in any event, CPR 7.7 did not supplant CPR 7.5. This was because the purpose of CPR 7.7 was to expedite valid proceedings.

Judgment

Mr Justice Andrew Baker refused to dismiss the claim. In coming to this decision he made the following conclusions:

• The trainee did as she was directed to do by leaving the claim form with the main reception security. She therefore took the relevant step to effect service pursuant to CPR 7.5, (paragraph 12).
• Service took place two business days after the relevant step had taken place pursuant to CPR 6.14, (paragraph 13). CPR 6.14 “fixes the date on which service of a claim form occurs, for all, not only for some, CPR purposes”, (paragraph 20). It is a “fixed rule that operates independently of any enquiry into when the claim form was in fact received by or otherwise brought to the attention of the defendant”, (paragraph 23).
• CPR 7.7 did not supplant CPR 7.5 because the “function of CPR 7.7…is to enable defendants to flush out early whether a claim that has been issued against them is going to be pursued and to get early sight of it…[t]hat does not involve or require putting the temporal validity of the claim form…into the defendant’s hands”, (paragraph 34).
• The case was not appropriate for dismissal on the facts given the following, (paragraph 36):
• “[t]he defendants received, as their CPR 7.7 notice demanded, early confirmation, less than half way through the period of validity of the Claim Form, that these claims are to be pursued”.-“[t]hat has not caused and will not cause them any prejudice or difficulty whatever”.
• “[t]he failure to comply strictly with the deadline set by the CPR 7.7 notice meant at most only that the defendants received confirmation…one or two working days later than they might otherwise have done”.
• “the claimant’s solicitors in good faith thought that completing the CPR 7.5 (1) ‘step required’ on 10 June 2016 would comply with the notice”.

Comment

Judge Baker’s decision is a pragmatic one. In light of recent cases concerning issues around service (abuse of process, late payment of court fees and inaccessibility to the court offices), the judgment certainly demonstrates a more lenient judicial approach. Whilst Judge Baker’s conclusions are            fact-specific and niche in their application to CPR 7.7, the decision may prove a useful ‘get out of jail free card’ for claimants placed in a similar predicament to Brightside Group Ltd.