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Articles, News | Mon 19th Feb, 2024
Defective Service, and the mandatory provisions of CPR 11
Travel Law practitioners will be familiar with the difficulties involve with service of the claim form out of the jurisdiction, which have been exacerbated post Brexit. The issues of jurisdiction following defective service, and the requirement for defendants to follow the steps set out in CPR 11 (albeit in a domestic rather than cross-border context), were recently considered by the Court of Appeal in R (on the Application of Rezq Allah Koro) v County Court at Central London [2024] EWCA Civ 94.
A brief history of the claim and its defective service
The underlying subject matter of the appeal was unusual. It involved an appellant Iraqi refugee’s attempted private prosecution against a business partner, which had been taken over by the CPS and then terminated by the CPS. The appellant then issued judicial review proceedings to challenge that decision to discontinue, but permission to bring those judicial review proceedings was refused.
The appellant’s next move was to issue a Part 7 claim for damages (in the sum of £386,112) against the CPS in the Central London County Court. The CLCC acknowledged receipt of the papers, but then did nothing until chased for a response, at which point the CLCC denied having any record of receipt of the papers.
The appellant then sent further copies of the papers, after which the CLCC sent a Notice of Issue to the appellant and stated that it had served the claim on the Defendant CPS. There subsequently arose an issue on defective service, in that CPR 6.10(b) requires proceedings against the Crown to be effected on the Government Legal Department, which the appellant had not specified.
A district judge at the CLCC then struck the claim out of the court’s own motion. Over the following 15 months, the claim went nowhere whilst the decision to strike out was followed by a series of decisions on paper, and at oral hearings, involving the same district judge, the CLCC bureaucracy, numerous circuit and deputy high court judges, and applications to set aside, appeal, and further claims for permission for judicial review. After 17 pages recounting this history, the Court of Appeal addressed the relevant principles on the consequences of defective service. There is not space in this article to recount said history in full, and it is not particularly necessary for the purposes of this article. To paraphrase Geoffrey of Tours, “a great many things kept happening, all of them bad” (or “infinitely regrettable”, to borrow the Court of Appeal’s words).
The key hearing which the Court of Appeal considered was listed before a Circuit Judge as an oral hearing to review the decision to strike out the claim. Counsel for the CPS argued before the Circuit Judge that because proceedings “were never served”, it followed that “the case does not exist”, and that accordingly “the court does not have jurisdiction to hear the claim”. The Circuit Judge accepted that submission, and held that “the reality is that there were no proceedings in the sense that whilst they had been issued, they had not been served on the correct party”.
The Court of Appeal’s Decision
On reviewing this decision, the Court of Appeal held that it had been wrong for counsel for the CPS to submit, and for the Circuit Judge to accept, that defective service of proceedings meant those proceedings did not exist. Once proceedings were properly issued, they exist, regardless of whether they have been properly served. The Court of Appeal considered this to be “axiomatic”.
The Court of Appeal held that the procedure for disputing the Court’s jurisdiction is set out in CPR 11. The most relevant provisions are (1)-(4) of the rule, which specify that any defendant wishing to dispute the court’s jurisdiction to try a claim, or argue that the court should not exercise its jurisdiction, may apply to the court for an appropriate declaration. Paragraph (2) of the rule specified that any such defendant “must” first file an acknowledgement of service in accordance with Part 10, and that any application under CPR 11 “must” be made within 14 days after filing the acknowledgement of service.
The court cited with approval Hoddinott v Persmimmon Homes [2007] EWCA Civ 1203, in which the Court of Appeal had held that the word “jurisdiction” in CPR 11 did not denote territorial jurisdiction, but rather the “court’s power or authority to try a claim”. Accordingly, if the CPS had wished to assert defective service, it should have followed the mandatory procedure set out in CPR 11 within the time limits set out therein. It would not be safe to speculate about what the outcome of such an application would be, there being many different considerations which might arise, of which three of the most obvious were i) the nature of the defect in service; ii) the promptness with which the point was taken; and iii) whether the CPS had waived the defective service.
Comment
Whilst the underlying claim in Koro might appear optimistic (the Court of Appeal was at pains to state that it took no view on its merits), the decision is a reminder of the importance of defendants taking a prompt and proactive approach to disputing the court’s jurisdiction where appropriate to do so. It is also a reminder of the peculiar nature of CPR 11, which does not necessarily dispose of a claim, but recognises a sort of limbo where claims may exist but be left in abeyance pending service. The consequential orders which can follow an application under CPR 11 are not straightforward, and can include an order: a) setting aside the claim form; b) setting aside service of the claim form; and c) discharging any order made before the claim was commenced or before the claim form was served (where, for example, an order granting permission to serve out of the jurisdiction had been granted), and careful consideration will need to be given to the appropriate order given the potential QOCS consequences under CPR 44.15.
A further point that was not expressly considered in Koro is that CPR 3.10 declares that, where there has been “an error of procedure”, such as a failure to comply with a rule or practice direction, the error does not invalidate any step taken in the proceedings unless the court so orders, and states that the court may make an order to remedy the error. In circumstances where a defendant’s application under CPR 11 exposes an error of procedure invalidating a step taken by the claimant which goes to the court’s jurisdiction to try the claim, it may be open to a claimant to argue that the court should exercise its powers under CPR 3.10 to rectify matters.
About the Author
Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.
Periodical Payment Orders: determining the suitability of an index in cases where the Claimant has moved abroad.
The case of ZSY (a protected party by EZY, his Litigation Friend) v AAA [2023] EWHC 2977 (KB), a personal injury claim, came before Deputy High Court Judge Dexter Dias KC in November 2023. The claimant was a protected party and there was an anonymity order in place in respect of both parties to prevent ‘jigsaw identification’.
The factual background of the claim was not in dispute. The claimant, a Latvian National, was injured in a road traffic accident whilst working in the UK. The claimant sustained very severe injuries, namely traumatic brain injury and a skull fracture. Following the accident he returned to Latvia. Apportionment of liability had been agreed between the parties, at a very precise figure of 57.5/42.5% in favour of the claimant. The trial was therefore to proceed on quantum only. However, approximately two months before trial there had been a JSM where the parties had reached a mutually acceptable agreement on damages, which included an annual periodical payment of £16,000 to be converted into Euros as at the date of the approval hearing and index-linked to be paid in Euros thereafter. The purpose of the hearing was whether the Court should approve the claimant’s damages in the compromised claim.
The interesting point raised during the course of the hearing, and judgment, is that the court had to consider the most suitable indexation and data set to be used when calculating the adjustment to the annual sum specified in a Periodical Payment Order “PPO”, in light of the fact that the claimant had moved back to Latvia indefinitely during the lifetime of the claim.
Practitioners will often focus on the appropriate tables within the Annual Survey of Hours and Earnings (‘ASHE”) to work out the amount of future payments, for example when calculating the future cost of carers. The latest ASHE dataset was published by the Office for National Statistics on the 1st November 2023. However, the dataset is based on UK data, representing fluctuations across the UK labour market and the claimant had moved to Latvia, where arguably the dataset would be less applicable.
The Court of Appeal in Thompstone v Tameside and Glossup of Acute Services NHS Trust [2008] EWCA Civ 5 approved the criteria set down by Mackay J in RH (A Patient) v United Bristol Healthcare NHS Trust [2007] LS Law Med 535, which the Court must consider when determining the appropriate method to be adopted in respect of indexation.
The criteria for the suitability of an index [set out at para 56 and 71 of Thompstone] are as follows:
Lord Justice Waller giving the lead judgment in Thompstone [at para 58] found that there was no great distinction between the approach taken by previous Judges as to the suitability of an index. What the Court is trying to do is “provide an answer which, on the information it has at the trial, will, through the use of a PPO, best provide the claimant with 100% compensation. If, in the context of future care, of which the main element is the wages of the carers, the RPI is not suitable for the purpose of tracking wage inflation, the question is whether a more suitable index or measure is available. Suitability should be tested against the criteria set out by Mackay J quoted above. If an alternative is more suitable, it must be open to the court to accept that alternative even if some criticisms can be made of it. If the alternative is less suitable than RPI it obviously could not be chosen. But this is not a ‘stand alone’ exercise under which the court would have to disqualify an alternative because of criticisms of its suitability even though the alternative was more suitable than RPI.”
Expert evidence will often be required to satisfy the Court that the criteria have been properly considered and that the proposed index is suitable and in the best interests of the claimant.
In the case of ZSY the experts proposed indexation in line with the wage index in Latvia, the Latvian Monthly Wage Index, which is published on the 1st March each year. The use of such an index was to protect the claimant to the extent possible against fluctuations and volatility in the currency market and the growth of the Latvian economy. Deputy High Court Judge Dexter Dias KC considered this to be a sensible structure from the claimant’s point of view and approved the settlement and PPO.
About the Author
Called in 2018, Francesca Kolar accepts instructions over all of chambers’ practice areas, including most particularly personal injury and clinical negligence. Prior to pupillage she spent two years teaching debating to students in inner-London secondary and primary schools, for the social mobility charity Debate Mate.
Call: 2011
Call: 2018
