Francesca O’Neill on the consequences of failing to serve a claim form properly

Claimants are waiting to serve claim forms until the last minute – and then making mistakes that are difficult to rectify and can lead to disaster. Meanwhile defendants are growing more savvy: they will challenge the court’s jurisdiction to hear the claim if the claim form has expired unserved, or has been served against the wrong party; or they may seek to end the claim entirely.

I am regularly instructed to strike out claims for this reason, and those include high-value claims where liability may have been admitted pre-action. Solicitors who fail to serve the claim form leave themselves open to applications for wasted costs, and worse, professional negligence claims for depriving their clients of the opportunity to pursue a claim to trial. If all this has made you sit up: good!

Failure to serve

When proceedings are issued, a claim form must be served four months later (CPR r7.5(1)). If it is not served within this timeframe:

• a defendant can apply under CPR 11 in respect of the court’s jurisdiction. Any such application must be made within 14 days of the filing of the acknowledgement of service. The effect of CPR 11(5) is that where there is a failure to make an application within 14 days after filing of acknowledgement of service, the party is to be treated as having accepted jurisdiction;
• a defendant can apply for strike out on the basis that the claimant has not disclosed any reasonable grounds for the bringing of the claim or has failed to comply with a rule (CPR r3.4(a)(c))

A claimant facing any such application must first consider whether they have served the claim form properly (in accordance with CPR r.6 and PD6). If they have not, they must rely on the generosity of the court to retrospectively perfect their defective service. These applications, under CPR r.6.15 and 6.16, are fraught with difficulty. Per Popplewell J in Societe Generale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS [2017] EWHC 677 Comm, service can be dispensed with only in ‘exceptional’ circumstances.

A ‘good reason’

In deciding whether to authorise service by an alternative method under CPR Rule 6.15, whether prospectively or retrospectively, the Court will ask itself whether there is ‘a good reason’ for the fact that it has not been properly served (see Abela v Baadarani [2013] UKSC 44).

A critical factor is whether the defendant has learned of the existence and content of the claim form (per Abela, and Barton (Appellant) v Wright Hassall LLP (Respondent) [2018] UKSC 12. This is because the most important function of service is to ensure that the content of the document served is brought to the attention of the defendant. But that is not enough; the mere fact that a defendant learned of the existence and content of the claim form cannot of itself constitute a good reason; something more is required (Abela at [36], Barton at [19(ii)]). Negligence or incompetence on the part of the claimant’s legal advisers is not a good reason; on the contrary, it is a bad reason, and a reason for declining relief (Hashtroodi v Hancock [2004] EWCA Civ 652).

In R (on the application of The Good Law Project) v Secretary of State for Health and Social Care [2021] EWHC 1782 (TCC) these matters were carefully considered in the context of alleged mishandling of PPE contracts arising from the Covid-19 pandemic.

The claimant in that case had failed to serve a sealed claim form in time (although it had sent an unsealed claim form before the relevant period expired). It made an application for retrospective good service under CPR 6.15.

O’Farrell J summarised the claimant’s position thus:

‘The claimant accepts that service on the defendant did not fully comply with CPR 6.3(1)(d), read with Practice Direction PD6A, paragraph 4.1, because the sealed claim form was not sent to the “newproceedings” email address. However, the defendant, through the Treasury Solicitor’s nominated case-officer, was made fully aware of the existence and contents of the sealed claim form on the date that proceedings were commenced, and via what the claimant believed to be formal service. The purposes of formal service were fully achieved.’

The submission was that the recipient had suffered no prejudice because they were fully apprised, and the strike out was an attempt to ‘play technical games’.

The defendant’s position was summarised as follows: ‘It is accepted that the defendant had knowledge of the proceedings by service on Mr Olsen and the other named individuals, but that alone does not provide a good reason for alternative service under CPR 6.15.

‘This is not a case in which the claimant should have had any difficulties in effecting valid service. It made a careless mistake in emailing the claim form to the wrong address. If the court were to grant the claimant’s application, the defendant would suffer prejudice in that it would be deprived of an accrued limitation defence to the claim’.

The court then carefully considered what had been said in Abela and Barton. In Barton, Lord Sumption said: ‘… I agree with the general point that it is not necessarily a condition of success in an application for retrospective validation that the claimant should have left no stone unturned. It is enough that he has taken such steps as are reasonable in the circumstances to serve the claim form within its period of validity.

‘But in the present case there was no problem about service. The problem was that Mr Barton made no attempt to serve in accordance with the rules. All that he did was employ a mode of service which he should have appreciated was not in accordance with the rules.’

In Barton, the claimant was unrepresented. The Supreme Court could (and did) consider that this may lead to a court dealing with matters differently. But in Good Law Project, the claimant was represented by solicitors throughout.

Considering the firm stance of the courts in first instance decisions following Barton, the Court declined to retrospectively correct the defective proceedings (see, for example, another instance where a retrospective application was declined, in Boxwood Leisure Ltd v Gleeson Construction Services Ltd [2021] EWHC 947 (TCC)).

In the Good Law Project case, the failure to send the sealed claim form to the “newproceedings” email address was a careless mistake that came very close to satisfying the provision of the rule, but did not. There was no good reason to subvert the ‘bright line’ rule.

O’Farrell J said: ‘The failure to effect valid service within the time specified by CPR 54.7 was serious and significant. In the absence of service of a valid claim form, the defendant was not subject to the court’s jurisdiction. The delay was one day but against the benchmark of seven days. The reason for the failure was a careless mistake made by the solicitors acting for the claimant. Extending time for service of the claim form would deprive the defendant of any accrued limitation defence. A material circumstance in this case is the very tight deadline imposed by the PCR 2015 for an economic operator, or other person, to challenge the lawfulness of a decision in respect of a public procurement contract. In those circumstances, it would not be appropriate to grant an extension of time.’

The Court of Appeal upheld the High Court’s decision, albeit with a strong dissenting judgment from Phillips LJ, who said that Good Law Project’s failure was highly technical and had not had any practical consequences. There was not one iota of actual detriment in the invalid notification of the claim form. If service was not to be validated retrospectively in such circumstances, form had triumphed over substance and the overriding objective to deal with cases justly had itself been overridden (see §80-92).

A firm line

Good Law Project is appealing to the Supreme Court, and the hearing is scheduled for October. However, the law is quite well settled at the present time. Claimants who have failed to serve the claim form in accordance with the rules have had their applications for retrospective perfection fail. Experienced judges in the county court will not grant relief even where there is significant prejudice to the claimant:

1. In N v An NHS Foundation Trust (I) & a GP (II), the claimant sued various medical professionals for a failure to properly manage his prescription of lithium, which he alleged led to liver failure. By the time the applications were heard, the claimant had sadly passed away. The value of the claim was expressed to be more than £200,000.
   
   The claimant purported to effect service of the claim form on the GP by sending a hard copy of it by special delivery to the GP surgery where he worked, by email to the surgery’s email address, and by email to his email address. No permission had been given for electronic service (following PD6A), and so the claimant relied on the service by special delivery. This too was not good service, following Chelfat v Corbett [2021] 2 WLUK 748, and Murrills v Berlanda [2014] EWCA Civ 6.
   
   The claimant then made a cross-application for retrospective perfection of service by way of CPR 6.15. This was resisted on the basis that the threshold for a successful application is very high, following Abela and Barton. Where the claimant alleged that the GP had been fully aware of the content of the claim form, and that the application to strike out was technical game playing, this was plainly wrong in the face of the decision in Good Law Project. 
   The Circuit Judge struck out the claim and ordered the claimant’s solicitors to show cause why they should not be personally liable for the wasted costs of the action.
   
2. C v A University Health Board (I) & A GP Surgery (II) involved a slightly different kind of failure, but one that should still be carefully considered. The claimant brought claims alleging that there had been a failure to order diagnostic tests that would have shown she was suffering from a serious debilitating neurological disease. Her solicitors had issued proceedings against her treating hospital, but also her GP surgery. They should have issued against an individual GP. They made an application under CPR r19.5 to add a party after the limitation period had expired. They had also failed to serve the Claim Form at all, since they recognised that the wrong party had been named and they thought that this would be pointless.
   
   The proposed new defendant, the GP, opposed the application. She was not a party to the litigation. Limitation had expired. The application therefore did not meet the criteria in CPR r19.5, and no application asking the court to exercise its discretion under s.33 of the Limitation Act 1980 had been made. Further, the decision to name the GP surgery and not the GP personally was not a mistake that could be corrected in this way (following The Sardinia Sulcis [1991] 1 Lloyds LR 201, as summarised and endorsed by the LCJ in Adleson & Anr v The Associated Newspapers Limited [2007] 4 All ER 330). A mistake must be as to the name of the party, rather than that party’s identity.
   
   More problematically, the Claim Form had not been served. The court agreed that the claim form had been allowed to expire unserved, and there was no substitution allowed. No application had been made under CPR r.6.15.

Future direction

We may see the law take a new direction following Good Law Project’s appeal to the Supreme Court. It is obvious that the much stricter test for relief in these circumstances does not sit easily with the ‘all the circumstances of the case’ test in applications for other types of relief under CPR r3.9.

So far, the courts have been unwilling to grant negligent or careless solicitors the opportunity to resuscitate claims that have been strangled at birth. Will the Supreme Court change that? Watch this space.

This article was first published in PI Focus, May 2023.