The Dekagram: 16th October 2023

Articles, News

16/10/2023

This week’s Dekagram examines whether, and when, service of a claim form can be validly effected on an erroneous address; Lucy Lodewyke looks at an unusual case in which service under CPR Part 6.15 was authorised. Meanwhile, the presumption that foreign law is similar to that of England and Wales has vexed the Commercial Court, and Sarah Prager KC asks whether it ought perhaps to have vexed it much sooner in the case in question.

Service of the Claim Form – wrong address but right idea

The recent case of London Fluid System Technologies Ltd & Ors, R (On the Application Of) v HM Revenue and Customs [2023] EWHC 2206 (Admin) is a relatively rare example of a Claimant succeeding on an argument under CPR 6.15.

CPR 6.15 ‘Service of the claim form by an alternative method or at an alternative place’ is commonly a provision prayed in aid when a Claimant has fallen foul of the standard service rules under CPR Part 6.

It states the following:

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

In the recent case, the Claimant had mistakenly served the Defendant at the wrong address. The Claimant sought judicial review of the construction of a Revenue Scheme. The proceedings were issued and served by the Claimant. However, the proceedings were served directly on the relevant solicitors at the HMRC. The Defendant sought to argue this was ineffective service.

The argument made by the Claimant was that this was effective service and that this service took place because of a press released policy document that HRMC had sent it. It was argued that the reading of this press release indicated that service of the claim form could take place on the relevant solicitor rather than the standard address for service.

Mrs Justice Foster considered the construction of the press release and determined that the claim form had not been properly served.

However, in her judgment this was a case in which it was clear that the provisions of CPR 6.15 must be applied so as to direct that good service took place in this case in respect of both claims.

[65] In my judgement this is a clear case for the exercise of that jurisdiction.

Mrs Justice Foster applied the considerations under CPR 6.15 as follows:

Whether the Claimant took reasonable steps to effect service in accordance with the rules:

It was determined that in the context of the wording of the Press Release and the understanding of its meaning, the Claimant did take reasonable steps to effect what he reasonably understood to be required in accordance with the rules.

Importantly, it was stated that this case was not a careless slip – up case. This is not a solicitor who did not care to inform himself, or was careless and slipshod. This solicitor took care within the system which he understood to be operating and which he had previously operated as he understood it successfully and consistently with HMRC’s direction, after the introduction of the email service policy. He believed he had effected service in accordance with the “rules“. Mrs Justice Foster confirmed that in her judgement that belief was not unreasonable.

Whether the Defendant/his solicitor was aware of the contents of the claim form at the time when it expired:

Mrs Justice Foster concluded that overwhelmingly, the answer to this question is yes. There were numerous occasions on which the relevant materials reached the relevant solicitor. The purposes of service had been plainly achieved, and the case was progressing, with concessions made as to a joint acknowledgement of service, and so forth with core bundles served and no doubt considered. There is no question but that HMRC were made aware on the several occasions on which the materials were provided to them, and were able to take such steps as they believed appropriate in the proceedings – indeed acted as if those proceedings were properly brought until the last minute.

The prejudice if any the Defendant would suffer by retrospective validation of non-compliant service bearing in mind what he knew about its contents:  

It was recognised that there would be prejudice to the Defendant however, this was balanced against the other circumstances of the case.

[76] I am clear that there is a good reason so to order, namely that in the present context, balancing all the factors, justice requires that the claim forms be treated as properly served, for the reasons I have given.

Mrs Justice Foster recognised that the mere fact that the defendant knew of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR r 6.15(2). But she concluded that in this case, for all the reasons given, there were numerous other factors playing into the good reasons which support this order.

Comment

This case represents an occasion upon which CPR 6.15 has been successfully used to prevent the serious consequences of ineffective service. However, the Judge was careful to set out in her judgment that the case was very fact sensitive. This case therefore serves as a useful warning to both Claimants and Defendants alike.

About the Author

Lucy Lodewyke was called in 2018 and undertakes work across all of chambers’ practice areas. Prior to coming to the Bar she worked as a paralegal at Stewarts in the Personal Injury Department, and then as a paralegal to a barrister specialising in personal injury and clinical negligence work. This invaluable experience has given her an insight into the profession from another perspective, with knowledge beyond her call.

Applicable Law: the Presumption of Similarity

In a decision that some practitioners will find surprising, Foxton J (in Granville Technology Group Ltd v LG Display Co Ltd [2023] EWHC 2418 (Comm)) has held that a party wishing to displace the presumption that foreign law is similar to the law of England and Wales need not always plead as much.

The European Commission has found that a cartel existed in the sale of LCD panels between October 2001 and February 2006. In Granville Technology the claimants sought damages arising out of the operation of that cartel. The claimants’ case was pleaded on English and EU law principles. The defendants admitted that if English law applied, the infringements would be a breach of statutory duty but argued that a substantial proportion of the claim was subject to the laws of Japan, Taiwan, South Korea and China. The defendants put the claimants to proof on the fact that the pleaded breaches of EU law gave rise to causes of action under the foreign laws and/or were not time barred under those laws. The defendants asserted that the claims were time-barred under the relevant foreign laws and asked the claimants to admit that; the claimants refused. The defendants initially pursued an application to adduce expert evidence on the foreign laws on limitation and then expressed their intention to contend at trial that the presumption of similarity (that is, that foreign law was similar to that of England and Wales) was not appropriate.

Readers will be aware that the Supreme Court held in FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45 that this rule allows the courts to apply English law if neither part contends that another system of law applies, even if it has been established that the claim was governed by another system of law; and that the presumption of similarity applies where the default rule does not.

Foxton J was considering all of this at a pre trial review, a late stage, you may think, for these issues to be ventilated. He accepted the defendant’s argument that it was not necessary for it to have pleaded the inapplicability of the presumption of similarity; the presumption was merely the drawing of an inference, and its application was limited to circumstances where drawing that inference was reasonable. It was not necessary to plead reliance upon it. The defendants had pleaded a positive case that the applicable law was not English law, and put the claimants to proof that the matters complained of were actionable under that law. The claimants had options as to how they might go about satisfying the burden of proof, which were not fixed when the particulars of claim were served. Generally, parties are required to plead facts, and not the means by which the party who sought to establish those facts ought to prove them, and where the other party had put the claimant to proof of those facts, the court was not persuaded that CPR16.5(2) required that party also to plead that one of the means by which the alleging party might seek to was not available.

Comment

The presumption of similarity should be approached with caution, and this case is a good indicator of why that is. Where a claimant relies on the presumption, it should be astute to ascertain whether it is accepted that the applicable foreign law is similar or whether the operation of the presumption is challenged.

That said, it is difficult to see why the presumption exists if a defendant can displace it merely by averring in its pleadings that it should not apply in a particular case. It would surely be in the interests of the administration of justice that in all such cases the party seeking to displace the presumption should state clearly how and why it seeks to do so at the earliest possible time, and certainly before the pre trial review. The court and the parties can then take a view as to the defendant’s case on this issue and what evidence is needed to counter and to support it. The author tends to take the view that if anything comes as a surprise at the PTR, someone somewhere has done something wrong.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.

Featured Counsel

Sarah Prager KC

Call 1997 | Silk 2023

Lucy Lodewyke

Call 2018

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