This week we look at service of documents, and in particularly originating process and notices to prove documents – what happens when (against our advice) you leave service to the last minute? Spoiler: no good can come of it. On the other hand, if you don’t challenge defective service in accordance with CPR Part 11, the claimant may have the last laugh.
One of the first acts of the new Lord Chancellor has been to begin the review into the Personal Injury Discount Rate – a review that now has to be concluded by mid January 2025. Thus begins a period of uncertainty, with litigators striving to second-guess what the government is likely to do, in order to recalculate future loss claims in serious personal injury cases. Some indication as to the likely direction of travel will be given in early October, when the Government Actuary will report, and the devolved governments of Scotland and Northern Ireland will announce their new rate. It is worth bearing in mind that the discount rate could increase, decrease, or remain the same; and anyone handling a claim with a sizable future loss element should monitor developments closely over the next few months.
In other, even more exciting, news, the latest edition of Work Accidents at Sea, the definitive introductory work on that subject, edited by Deka’s Linda Nelson, has now been published and is available at all good bookshops and from chambers.
What deadline applies for an extension of time to serve proceedings? The Occupiers of Samuel Garside House v (1) Bellway Homes Limited, (2) Sheppard Robson Architects LLP [2024] EWHC 1579 (KB)
The underlying facts in this case need not concern us – they revolve around a serious fire at a block of flats which took place on 9th June 2019. On 6th June 2022 the Claimants issued proceedings, but did not begin attempts to serve them until April 2023. The issue arose as to whether or not proper service had been effected; and if not, whether the Defendants were able to take the point and have the claim struck out as a result.
The Procedural History
The claim form was issued on 6th June 2022, after which the Claimants’ solicitors had until 6th October 2022 to serve proceedings, the Defendants both having nominated solicitors within the jurisdiction to accept service on their behalf. On 22nd September 2022, two weeks before the expiry of the lifetime of the claim form, the Claimants’ solicitors wrote to the Defendants’ solicitors requesting a stay and an extension of time within which to serve proceedings; on 3rd October 2022 they agreed to the proposed consent order, which extended time for service until 4pm on 21st April 2023. There followed some correspondence between the parties relating to the need for and delays in obtaining expert evidence, but no firm agreement to extend time further for service of proceedings. The upshot was that at 2.17pm on 21st April 2023 the Claimants’ solicitors emailed solicitors for the First Defendant requesting an extension of time; the latter replied at 3.53pm refusing. At 4.18pm the Claimants’ solicitors responded to say that they had confirmed with a “Barbara” at the First Defendant’s solicitors their fax number but that “That fax number has not been recognised.” and said “given the issues with the fax at your end, can you confirm that our email timed at 15.44… can be accepted as service of the claim.” Similarly, the Claimants’ solicitors also attempted to serve solicitors for the Second Defendant by fax timed 3.49pm, and email. They also seem to have attempted to serve by way of DX – the Defendants receiving proceedings via this method on 24th April.
The evidence of the Claimants’ solicitors as to service by fax and DX was as follows:
“The third witness statement from [the Claimants’ solicitors] referred to: the documents being sent to both [Defendants] by DX on 21 April 2023; the documents having been prepared for DX following 3.40pm then being placed in a designated area of the [Claimants’ solicitors’] office reception for collection by the DX courier and such usually occurring “after office hours” with the DX courier having a key to the office; a series of Fax transmissions having been sought to be made to the Fax numbers obtained for [the Defendants] before 4pm on 21 April 2023 and such having all failed; a print-out for the first (15.49pm to [the Second Defendant’s] fax) with an error code ##280 which the relevant machine supplier indicated suggested an error at either the sending fax machine or the receiving fax machine or inbetween them; print-outs for the second and third faxes suggesting that the faxing failed because of feeding problems into the [Claimants’ solicitors’] system; the fax machine having sent faxes that day to other fax numbers successfully; and there having been on other subsequent days problems in sending faxes to [the Defendants’ solicitors].”
Perhaps inevitably in the circumstances, on 27th April both Defendants replied to the attempted service of proceedings by observing (amongst other things) that:
Accordingly, on 28th April the Claimants’ solicitors applied for a declaration that the proceedings had been served, alternatively for relief from sanctions for any failure to serve the claim form and Particulars of Claim in time, and/or for an extension of time for service.
On 4th May the Claimants’ solicitors responded to the First Defendant’s solicitors to state that:
Proceedings were finally sent by DX to both Defendants on 10th May 2023.
Neither Defendant ever filed an Acknowledgement of Service or any application under CPR Part 11 for a declaration that the court did not have jurisdiction to hear the claim by reason of improper or defective service.
The Relevant Rules for Service
Master Dagnall, in unravelling this sorry procedural history, had regard to several procedural rules. Perhaps most pertinently, he noted that (at least as matters currently stand, pending amendment) where a fax number is given by a solicitor, it is deemed that service can take place by fax without more (CPR6PD6A, para.4.1(2)(a)); whereas where an email address is given by a solicitor, the solicitor has to state that it can be used for service (and there should be made an advance enquiry regarding document sizes) and that in the absence of such a statement, email cannot be used for proper service of proceedings (CPR6PD6A, para.4.1(2)(b)). Service by DX is effected by leaving the document with or delivering the documents to the relevant service provider; or by having the documents collected by the relevant service provider (CPR6PD6A, para.3.1(2) and (3)).
CPR 7.5 sets out the steps needed for service by each method:
7.5 (1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.
Method of Service | Step Required | |
First class post, DX | Posting, leaving with, delivering to or collection by the relevant provider | |
Electronic method | Sending the email or other electronic transmission |
CPR 7.5 does not require the taking of a relevant service step to have been successful. CPR 6.14 deems service within the UK to have occurred upon the second day after the taking of the relevant service step; but for the purposes of CPR 7.5 only the service step needs to have been taken.Pursuant to CPR 10.1(3)(b) a defendant must file and serve an Acknowledgement of Service if (s)he wishes to dispute the jurisdiction of the court; CPR 11 sets out the procedure for doing so.
Method of Service
Both Defendants’ solicitors had confirmed for the purposes of CPR Part 6.7 that they were authorised to accept service; those confirmations rendered it mandatory for service to take place on the solicitor and not the client (cf for example the decision of the Court of Appeal in Nanglegan v Royal Free [2001] EWCA Civ 127).
Time for Taking a Service Step
It was common ground that the consent order agreed in November 2022 extended the time for service under CPR Part 7.5 to 4pm on 21st April 2023; this, so the Master found, meant that the Claimant’s solicitors had to take a service step (as opposed to actually effecting deemed service) by that time (cf in this respect the decision of Master McCloud in Jones v Chichester [2017] EWHC 2270). Further, the time for the taking of the prescribed step for service was expressly limited by the November order to 4pm, and not midnight, on 21st April 2023, notwithstanding that CPR7.5 provides for a midnight deadline. The parties were free to agree an extension to whatever time they might choose, and there was no reason to ignore the particular time expressly stated in the order agreed.
Had the Claimants Successfully Taken an Effective Step by 4pm on 21st April?
Having established what the Claimants’ solicitors needed to do, and by when, the Master then turned his mind to whether they had in fact done it given the facts as he had found them.
The purported service by email was doomed to be ineffective, because:
The purported service by fax on the First Defendant was also doomed to be ineffective, not least because the email which contained the confirmation of authorisation to accept service did not contain any fax number, and nor did subsequent correspondence. Contrary to CPR6PD6A,para.4, there was nothing in writing referring to the First Defendant’s solicitors’ fax number. Moreover, although that was the end of the matter as far as service by fax on the First Defendant was concerned, in the light of the error reports generated by their solicitors’ fax machine, the Claimants had not discharged the burden of proof to show that it was more likely than not that the machine had actually sent out the proceedings into the transmission network.
The position as to the purported service by fax on the Second Defendant was rather more finely balanced, but in the end the Claimants also failed to prove that that defendant had been served by that method (cf para.118 of the judgment):
“The first attempt (i.e. that at 15.49pm) was within the time limited by the November Order. Here the evidence as to what occurred; being, in particular (although I have considered all of the evidence). the ##280 error message which I am satisfied on the evidence of both Rana and Hobson only meant that a problem had occurred somewhere in the process (which could be at the EDS Fax machine or at the MB fax machine or anywhere in between), the fact that where there were document feeding problems a different error message would be generated, the fact that the EDS Fax machine was successfully sending faxes to other destinations, the fact that the fax was not received by MB, and the fact that no problems were reported with the MB fax machine; is finely balanced. However, the burden of proof is on the Claimants, and I do not consider that the Claimants have discharged it on the balance of probabilities. All I can really tell is that the attempted transmission failed and I do not have sufficient to conclude that it is more likely than not that the transmission failed at some electronic point after the EDS machine had “sent” it. That it does not seem to me can have been sufficient to amount to a “Sending the… other electronic transmission” within the meaning of CPR7.5.”
The attempt to serve by DX on both Defendants had begun when the Claimants’ solicitors left the relevant documents at their reception area for collection by the DX courier. They had left the documents for collection prior to 4pm; they had been collected after 4pm. The question for the Master was whether or not simply leaving initiating documents for collection amounted to a method of service within the meaning of CPR Part 7.5(1); if it did not, the service step had not been taken prior to the agreed time.
Master Dagnall found that simply leaving the documents in a reception area for collection did not satisfy the procedural burden for service (cf para.112 of the judgment):
“The leaving of the material in the EDS reception cannot, in my judgment, amount to a “delivering to… the relevant service provider” and the “collection by the relevant service provider” only took place after the 4pm time limit contained within the November Order. While the position might be different (although I have reached no conclusion on the point) if the material had been placed in a box owned by the DX provider (and possibly to which only the DX provider had a key), Rana only states that the material was left in reception and that the DX courier had a key to the office enabling access after office hours.”
Therefore the attempts made to serve within time by DX had also failed.
Master Dagnall was left with no choice but to find that the Claimants’ solicitors had failed to serve proceedings properly by the agreed date and time set out in the consent order agreed by the parties. He refused to grant relief from sanctions in this respect (cf para.139) because:
Here the Claimants had not taken all reasonable steps to comply with CPR Part 7.5 and the Master did not see that he had any jurisdiction to grant relief; furthermore, even if he had had any such jurisdiction to do so, he could not have exercised it in favour of the Claimants on any principled basis.
The result of the Failure to Serve Proceedings
The result of course was that the Claimants’ claim had not been served within the lifetime of the claim form. But the Defendants had also failed either to file an Acknowledgement of Service or to make an application under CPR Part 11. Even though the Claimants were not entitled to a declaration that proceedings had been properly served, because they had not, they argued that nor were the Defendants entitled to have the claim struck out for lack of jurisdiction over it, due to the lack of an application to this effect.
A similar situation was recently considered by the Court of Appeal in R (Koro) v County Court at Central London [2024] EWCA 94, in which a Part 7 claim form had been purportedly served (but the service was said not to be in accordance with the rules) and no acknowledgment of service had been filed. The court then struck out the claim on its own initiative in response to the informal submissions from the Defendant that the claim form had not been properly served within time and so was a nullity. The Court of Appeal was mainly concerned with the procedural approach taken by the court, which it held was wrong in various respects (cf paras.64 – 69 of that judgment).
Master Dagnall concluded, applying Koro and other authorities, that the mere fact that proceedings have not been properly served does not lead to automatic strike out; there must be an Acknowledgement of Service and Part 11 application for strike out for want of jurisdiction. It was incumbent on the Defendants to make such an application, and they had not done so. Failure to take these steps timeously meant that the Defendants would have to apply for permission to file and serve an Acknowledgment of Service and to make a Part 11 application out of time; any such applications now made will be determined at a future date.
Comment
The judgment in this case makes for sorry reading. The Claimants’ solicitors failed to serve proceedings; failed to seek or obtain an extension of time for service; failed to turn their minds to proper methods of service until the very last moment; and then failed to ensure that service was underway prior to the deadline. On the other hand, the Defendants’ solicitors both failed to file Acknowledgments of Service or Part 11 applications timeously or at all.
It is, however, difficult to escape the conclusion that there must be an easier, less time consuming, less expensive way of dealing with service failings. It must have been fairly obvious to all parties that service had not in fact been effected properly, and to require the defendants to make a further application, when it has now been established that proceedings have not been commenced properly, does seem inconsistent with the overriding objective (although it is consistent with binding authorities such as Koro). The Rules Committee is currently examining questions around service – it is suggested that the cumbersome Acknowledgment of Service/Part 11 procedure is, in its current form, unsatisfactory and ought to be reformed.
About the Author
Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. 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.
What deadline applies for service of a notice to prove? Invest Bank plc v. El-Husseini [2024] EWHC 1804 (Comm)
A party wishing to dispute the authenticity of a document disclosed to it must serve a notice under rule 32.19 putting the opposing party on notice that it must prove the document’s authenticity at trial. Where no such notice is served, r.32.19(1) provides the result: “A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 … unless he serves [a notice to prove].”
The deadline for serving such a notice is provided in r.32.19(2), which states that it “must be served–
Given the terms of standard directions routinely made by courts, in which dates for disclosure and inspection precede dates for witness evidence, the deadline in r.32.19(2)(a) tends to apply.
A question arose about how to interpret the terms of r.32.19(2)(a) in Invest Bank plc v. El-Husseini [2024] EWHC 1804 (Comm). The underlying dispute relates to a debt said to be worth around £20m and various remedies sought by Invest Bank against multiple defendants. The litigation has been extensive, with some aspects heard by the Supreme Court in May 2024. The r.32.19(2)(a) point was, in comparison to the rest of the case, narrow and self-contained.
A document had been served on the Claimant that purported to be a divorce agreement between the First and Sixth Defendants made in August 2017. The Claimant wished to require the Defendants relying on it to prove its authenticity, and so on 14th March 2024 it served a notice to prove. The problem was that the deadline for service of witness statements had passed on 1st March 2024 (and that date was later than seven days after the document had been disclosed).
The Claimant applied for relief from sanctions, but argued as a preliminary point that it did not require relief because a later order, made on 17th May 2024 (after the Claimant’s application), had imposed a deadline for service of supplementary witness statements by 17th June 2024. That meant, argued the Claimant, that the “latest date for serving witness statements” was 17th June 2024 and the notice to prove was no longer out of time.
Calver J, after considering the arguments, held that the phrase “the latest date for serving witness statements” meant “the latest date for serving the primary witness statements”. He reached that conclusion for several reasons.
First, the judge considered that to hold otherwise would mean that the party relying on a document would not have clarity about which documents might ultimately be challenged, because it always remained a possibility that further witness statements could be ordered at a future stage of the litigation. Indeed, a very late further order could mean the party relying on the document had lost the chance to gather the evidence necessary to prove its authenticity.
Secondly, the judge noted the terms of paragraph E4.1(a) of the Commercial Court Guide, which included inter alia that “as a matter of proper practice notice under r.32.19 should normally be served well before the deadline for witness statements so that the party required to prove the document can take that into account when considering what witness statement evidence to obtain”. That reinforced the intention behind the rule: to allow the adducing party to know in good time what it must prove.
Thirdly, in the case at issue, the operative deadline at the time the application for relief was made had been 1st March 2024. A proper construction of r.32.19(1) meant that the Claimant had been deemed to have admitted the authenticity of the document on 2nd March 2024. The admission could not be withdrawn impliedly on the court making a subsequent direction for further witness evidence.
Fourthly, this approach was in line with the decision of Julian Knowles J in Tuke v JD Classics Ltd [2018] EWHC 531 (QB). In that case, witness statements (served on time) had been struck out and an order had been made for schedules of facts supported by further witness statements. The admission had been deemed to have been made after the original deadline had passed, and Julian Knowles J held that the order striking out the evidence and setting a fresh deadline did not have “the effect of setting aside the deemed acceptance by the Claimant of the … authenticity” of the documents in question.
The result was that the Claimant’s notice to prove had indeed been served out of time. Relief from sanctions was required and, in the circumstances (after a review of the arguments on the merits), the Claimant’s application for such relief was dismissed.
Practitioners should be aware of this decision and its effect on the deadline for serving a notice to prove. Calver J noted that r.32.19 is “poorly worded”, but there is now authority on its proper meaning, and ignorance of the same is unlikely to find favour when pleaded by a defaulting party. The judge added that the rule “requires consideration by the rules committee”, so it is possible that the Civil Procedure Rules will be amended in future to put r.32.19’s meaning beyond doubt.
About the Author
William Dean has a busy personal injury practice involving both domestic and foreign accidents. He is a contributor to the Butterworths Personal Injury Litigation Service, in which he is the author of the “Foreign Accidents” section. He also acts in tribunal claims against the Criminal Injuries Compensation Authority, including in cases involving foreign jurisdictions, and is a contributor to the leading textbook in that field.
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