In Heron Bros Ltd -v- Central Bedfordshire Council  EWHC 604 (TCC) Mr Justice Edwards-Stuart considered the question of whether service of an unsealed claim form is good service. In most cases the answer is probably “no”. However the judge held that when a claim form was served under the Public Service Regulations the failure was an irregularity that could be cured. (Be warned, however, that it is unlikely that similar provisions apply to proceedings served under the CPR). The case shows that the technical procedural aspects of the Regulations are not fully thought out. It also emphasises the needs for solicitors to be “on their toes” in circumstances where there is a mandatory requirement for service of the claim form within seven days.
The claimant was bringing an action under the Public Contracts Regulations 2006 in relation to construction of a leisure centre. The Regulations state that a claim form has to be served within seven days of issue.
On the 31st October 2014 the claimant wrote to the court asking for issue and for the claim forms to be returned. On the same date copies of the claim form and Particulars of Claim were served on the defendant. The documents that were served were unsealed, the claim number and issue date were blank. The Particulars of Claim contained a statement of truth.
- The court issued the claim form on the 10th November.
- The claim form was received by the claimant on the 14th November.
- The claim form was deemed to have been served on the 18th November 2014.
- The defendant made an application to strike out the claim.
The relevant Regulations state that “a claim form is deemed to be served on the day on which it is deemed by rules of court to be served.” There is no power in the Regulations to extend time for service.
THE PROBLEMS CAUSED BY THE SEVEN DAY PERIOD
There is a conflict between the provisions for service in the Regulations and those in the Civil Procedure Rules. CPR 7.5.1 provides that service takes place when the claim form is put in the post etc. (confusingly deemed service takes place later). However there were no such provisions in the Regulations.
- I am left with the impression that the draughtsman of the 2011 regulations did not appreciate the potential conflict between sub-paragraphs (1) and (5) of regulation 47F that was introduced following the amendments made by regulation 12. To reduce the already short period of seven days to five days, which is the effect of the Defendant’s construction of regulation 47F, has the potential in my view to create difficulties. By way of example one can modify the facts of this case. Suppose that the letter written and posted on 31 October 2014, a Friday, reached the court office (as it did) on the following Monday, 3 November 2014. The claim form is not sealed until late that afternoon, with the result that it then misses that evening’s post. The following day the office is short staffed owing to sickness and, although the covering letter was marked urgent, the claim form is not posted back to the Claimant until Wednesday. If it reaches the Claimant on the following day, Thursday, the Claimant must get it in the post that day in order to achieve service in time. However, if it takes two days to reach the Claimant, so that it arrives on Friday, 7 November 2014, the Claimant will find itself out of time even if the claim form is posted on to the Defendant immediately. There is nothing particularly implausible about this scenario. Further, I take judicial notice of the fact that a letter sent by first class post does not invariably arrive on the following day.
- In my view a reading of regulation 47F that produces such a state of affairs is profoundly unsatisfactory and so, adopting a purposive approach, I would construe the regulation so that “… serve in accordance with rules of court” is treated to mean that valid service is achieved when the relevant step mentioned in CPR 7.5 (1) is completed. Provided that is done within the seven-day period the requirement of the regulation is met. For the purposes of acknowledging service and other steps in the action, the deemed date of service is to be as provided in CPR 6.14.
- Further, I consider that to construe the regulation in the manner contended for by the Defendant would constitute a breach of the principle of effectiveness. This is because there could be situations, such as that given in my example, where a claimant simply cannot comply with the time limit for service even though it has taken all possible steps to do so. Accordingly, regulation 47F must be read so that service within the seven-day period is achieved if completion of the step required to effect service occurs within that period. Whilst seven days is not generous, it does at least provide a small amount of leeway for unanticipated delay.
- I derive support for these conclusions from the observations of Lord Neuberger in Mucelli at , where he said, in response to a submission that the provisions of CPR 6.7 relating to deemed service (the predecessor to CPR 6.14) were applicable to the statutory time limits:
“In my view, that general assumption is wrong. Section 26(4) requires the appellant’s notice to be issued and served within seven days, and I can see no warrant for the CPR being invoked to cut down that period. If a statute permits something to be done within a specific period, it is hard to see how that period can be cut down by subordinate legislation, as a matter of principle. In relation to the first two points of principle raised by these appeals, it is part of the prosecutor’s case, indeed it is part of my reasoning, that the reference to rules of court in the section govern the manner, not the time, of service. In the circumstances, it is particularly hard to see how invocation of provisions of the CPR can be justified in order to curtail that period. The point is reinforced by practical considerations: the seven-day period laid down by section 26(4) is short, and it does not seem very fair to cut it down, even if only by a few hours. Although the 14 days permitted by section 103(9) is somewhat longer, the same reasoning applies.
- Of course Lord Neuberger was not addressing a provision in terms similar to regulation 47F(5), which specifically referred to the deeming provisions in the rules of court. But his comment about cutting down the statutory time limit not being very fair can be applied with very much more force when the reduction is by a period of two days rather than a few hours.
DID THE COURT HAVE POWER TO EXTEND TIME FOR SERVICE OF THE CLAIM FORM?
The judge found that the court only had a very limited discretion to exercise time but it was inappropriate to exercise that discretion in this case.
- Reverting to the power to extend time, in both Pomiechowski and the decision of the Court of Appeal in Adesina v The Nursing and Midwifery Council  1 WLR 3156, the court held that, in order to achieve compliance with article 6.1 of the Convention for the Protection of Human Rights, the relevant statutory time limit was capable of being extended but only in exceptional circumstances.
- In Pomiechowski, which concerned a person’s freedom of movement, one can readily see why the court was prepared to hold that to deny an extension of time in any circumstances could in some cases constitute a breach of article 6.1.
- In Adesina, which concerned an individual citizen’s right to pursue her vocation, the position was less clear: not only because the right at stake was less fundamental but also because the time limit was much longer (28 days, rather than seven). Nevertheless Maurice Kay LJ concluded that there could be cases where the “very essence” of the right of appeal might be impaired and so he held that a discretion to extend the statutory time limit did exist but that it would only fall to be exercised in a very small number of cases. He said, at :
“A discretion must only arise ‘in exceptional circumstances’ and where the appellant ‘personally has done all he can to bring [the appeal] timeously’.”
- However, as Maurice Kay LJ pointed out, in the two cases under appeal the nurses did not come “within a country mile” of satisfying the test. Both had simply left it too late.
- In the present case the conduct of Quigg Golden has been criticised by Mr. Coppel at almost every stage. Further, Mr. Coppel was strongly critical of the fact that there was no witness statement from Mr. Parker, the author of the relevant correspondence, to explain what he did. In my view, Mr. Coppel’s criticisms are amply made out.
- First, the covering letter of 31 October 2014 simply requested the court to seal and return the claim form “at your earliest convenience”. That is in my view a formulaic expression: it does not connote any degree of urgency. Those acting for litigants cannot assume that members of the court staff are aware of every particular time limit, particularly in the rather less well known regulations. The onus is clearly upon the person lodging the claim form with the court to point out in very clear terms that the documents are required as a matter of urgency. This was not done.
- Second, Mr. Coppel submitted that in circumstances where those acting for a claimant were only a few minutes’ walk away from the court, a prudent solicitor would take the claim form and Particulars of Claim to the court in person and wait for the documents to be sealed and issued. Quigg Golden could plainly have done this, but they did not.
- Third, having not received the documents within a day or two, Quigg Golden took no steps to find out what had happened to themT. Given the time frame, I would have expected any competent person in its position to telephone the court office on Wednesday, 5 November, to ask what had happened or, an alternative option in this case, to go to the court in person. Quigg Golden’s failure to take any of these steps suggests that Mr. Parker may have simply overlooked the requirement to serve the claim form within seven days of its issue.
- The decision in Agardi v Penitentiary Judge of the Metropolitan Court, Budapest  EWHC 3433 (Admin) shows that where the failure to comply with the time limit is entirely the result of a failure by the applicant’s lawyers to take prompt action, the fact that the applicant himself was blameless may not of itself be sufficient to make the case “exceptional”.
- Whilst I am prepared to accept that the retention by the court of the sealed claim form for the entire period available for its service is capable of constituting exceptional circumstances, in my judgment that can only assist the claimant if it and its agent had done all they could to obtain the return of the claim form from the court in order to serve it in time. Plainly that did not happen and so the conclusion must be that the application to extend time in this case simply does not cross the threshold of the court’s jurisdiction.
WAS THIS AN IRREGULARITY THAT COULD BE CURED?
Earlier in the judgment the judge considered the effect of serving an unsigned claim form, with a comprehensive review of the authorities.
The effect of sending the unsealed claim form to the Defendant
- In support of this further ground Ms. Hannaford relied on the observations of Lord Mance in Pomiechowski v District Council of Legnica, Poland 1 WLR 1604, with whose judgment the other members of the court agreed, although Lady Hale also delivered a separate judgment of her own.
- The cases under appeal concerned rights of appeal under the Extradition Act 2003, which had to be exercised within very short time limits. For example, section 26(4) provides that:
“Notice of an appeal under this section must be given in accordance with the rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made.”
- Lord Mance pointed out that there had been a divergence of judicial opinion about the distinction between the requirements of the Act and the requirements of the rules, in accordance with which notices had to be served. In particular, there had been differences of opinion about whether or not service of an unsealed notice of appeal was a fatal defect because it was not a notice of appeal within the meaning of the section, or whether it was a procedural irregularity or error that could be corrected under the rules: see paragraphs  – .
- For example, in Dunne v High Court Dublin  EWHC 2003 (Admin), Rafferty J said, at :
“Nothing in the rules precludes service on the CPS or on the Respondent of an Appellant’s Notice which has not been issued (or stamped as received) by the Administrative Court Office as Mr. Justice Collins pointed out in dialogue with counsel during a hearing on 6 April 2009 conducted by video link when, it appears to me, at least initially the CPS thought that it could waive service. Alerted by the court, counsel preserved the jurisdiction point and Mr. Justice Collins granted legal assistance so that it could be argued or at least ventilated.”
- Then in Sciezka v Court in Sad Okregowy, Kielce, Poland  EWHC 2259 (Admin), Sullivan LJ said, at :
“Lord Neuberger made it clear in paragraphs 75 and 82 of his opinion (see above) that the reference to the rules of court in section 26(4) ‘govern the manner, not the time of service’. Whereas the time for both filing and serving the notice of appeal is fixed by the Act and may not be extended by the court (nor may the court dispense with filing or service of the notice of appeal, see paragraph 80 of Lord Neuberger’s opinion), the Act leaves the manner by which both filing and service of a notice of appeal are to be effected to the rules of court, ie the CPR supplemented by the relevant practice directions. Where procedural requirements governed by the CPR have not been complied with, the court has power to remedy the procedural error (CPR 3.10) and will do so if it is necessary in order to give effect to the overriding objective (CPR 1.2). This must apply with particular force to the very detailed procedural requirements which are not prescribed by the rules themselves, but which are contained within supplementary practice directions.”
- And in a further decision in the same year, Arunthavaraga v Administrative Court Office  EWHC 18921 (Admin), Richards LJ said, at :
“I have said that no decision on the point is necessary. I simply observe that I am not convinced on the basis of what I have seen that service would be defective if an unsealed copy of the notice were served within the seven-day period, provided of course that it were in identical terms to the notice as filed. Even if service of an unsealed copy is technically defective, it may well be that the remedial power in CPR rule 3.10 could be invoked to cure the defect without offending the strict requirements of the 2003 Act.”
- Reverting to the decision in Pomiechowski, Lord Mance said, in relation to the decision of the House of Lords in Mucelli , that the form of notice, rather than the identity of the parties on whom it had to be served, was “not the focus of decision” (at ). In addition, he noted that in Scotland a note of appeal has to be served before it is lodged with the court, so that what had to be served was, in effect, a draft note of appeal. At  Lord Mance went on to say:
“The statute requires notice of an appeal to be given in accordance with the rules of court, so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity. But this does not answer the question what constitutes giving ‘notice of an appeal’ to the respondents which, if not in accordance with the rules, nonetheless satisfies the statutory requirement and is capable of being cured. In my view, a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matters is that an appeal should have been filed and all respondents should be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal. This should not however be taken as a licence to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed Form N161 will need to seek and will depend upon obtaining the court’s permission to cure the position under the rules.”
- From this I conclude that Lord Mance is to be taken as supporting the “relaxed” view of the statutory requirements, as set out in some of the extracts that I have quoted above, and rejecting the proposition that service of an unsealed notice of appeal within the prescribed time is fatal.
- As I have already mentioned, the unsealed claim form and Particulars of Claim were sent to the Defendant under cover of an e-mail dated 3 November 2014. By virtue of CPR 6.14 those documents are deemed to have been served on the second business day after the relevant step was taken – in this case the sending of the e-mail. Thus the documents attached to the e-mail of 3 November 2014 are deemed to have been served on 5 November 2014. Since the claim form was issued on 3 November 2014, those documents were served within seven days of the start of proceedings. In my view this remains the case even if the documents are to be treated as having been served on 3 November 2014 – the day on which the proceedings were started.
- The question, therefore, is whether or not the unsealed claim form that was sent to the Defendant on 3 November 2014, which was identical to those sent to the court for issue, is properly to be regarded as a claim form for the purposes of regulation 47F.
- Mr Coppel also drew my attention to a decision of the Court of Appeal in Cranfield v Bridgegrove  1 WLR 2441, a hearing of five conjoined appeals. The relevant case was one where the claimant’s solicitor served an unsigned and unsealed copy of the claim form on the penultimate day for service of the issued claim form.
- The Court, in allowing an appeal from the judge, said that he took too liberal a view of the scope of the discretion conferred by the rule (as explained in Anderton v Clwyd County Council (No 2)  1 WLR 3174). One reason given, and the one relied on by Mr Coppel, was that the rule provided that after a claim form had been issued “it must be served on the defendant” (Court of Appeal’s emphasis). The sealed claim form as issued was not served because the claimant’s solicitor had left it at home, so he had to serve the draft.
- In my view, the outcome of that decision does not determine the outcome of this one for two reasons. First, that case precedes the decisions that I have already discussed in the preceding paragraphs and, in particular, the decision in Pomiechowski. Second, regulation 47F(1) refers to serving “the claim form”, not to serving “it”. This is to be contrasted with the wording of regulation 407F(1) as originally drafted: see paragraph 36 below.
- If a generous view is to be taken, as Lord Mance commends, I see no reason why the copy of the unsealed claim form that was served on the Defendant by e-mail, together with a copy of the signed Particulars of Claim with the Statement of Truth, should not be treated as a claim form that was served within the prescribed time. Of course it was not served in accordance with the rules because it was not a claim form that had been sealed and issued, but this is an irregularity that can be cured.
- This conclusion leads to the question whether the court should in its discretion cure the irregularity. I will address this question later in this judgment.
SHOULD THE COURT CURE THE IRREGULARITY?
Curing the irregularity
- With these considerations in mind, I return to the question of whether the court should cure the irregular service of the unsealed claim form. In my view it should. The purpose of the tight time limits in the Regulations is to enable the parties to procurement disputes to know exactly where they stand at the earliest opportunity: the objective of rapidity. If a procurement process is to be challenged, it must be done quickly so that the contracting authority can take whatever steps are necessary to protect its position. In this case the Defendant could not have been in any doubt, as from 3 November 2014, that the Claimant had sent a claim form and Particulars of Claim to the court, together with signed Particulars of Claim, with the result that the claim form would probably be issued within the next working day or two.
- I can find nothing in the judgment of Lord Mance in Pomiechowski that suggests that the threshold of “exceptional circumstances” should apply to an application to cure an irregularity. Paragraphs  and  of his opinion suggest that a general merits test is sufficient. In addition, of course, the court should only do so where it is consistent with the overriding objective.
- Ms. Hannaford submits that in the present case the “root cause” of the failure to serve the claim form in time was the failure of the court office to return the documents promptly. I do not agree. In my view, there were two effective causes: the failures of Quigg Golden that I have already mentioned, and the failure of the court office to return the documents promptly. Whilst the Claimant is clearly not responsible for the latter, it is responsible for the former.
- The irregularity in relation to the service of the claim form did not consist only in the fact that it was not sealed (and dated), as the rules require, but also that it did not bear the claim number (as required by CPR 7APD4). However, neither of these shortcomings deprived the Defendant of any knowledge of the nature of the claim against it or of the fact that proceedings had been or were about to be started.
- Since there was a clear failure by the TCC Registry to return the documents promptly it seems to me that it would not be right for the court to decline to cure the irregularity notwithstanding the fact that the problem was brought about in perhaps equal measure by the failures of Quigg Golden.
The principles of equivalence and effectiveness
- The principle of equivalence requires that the procedural rules governing the enforcement of rights derived from directly effective EU law must be no less favourable than the rules governing similar domestic actions. The European Court of Justice summarised the position in BS Levez v Jennings (Harlow Pools) Ltd  2 CMLR 363, at paragraph 18:
“… according to established case law, in the absence of Community rules governing the matter it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, however, that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness).”
- In relation to the principle of equivalence, the court went on to say this, at paragraphs 43 and 44:
“In order to determine whether the principle of equivalence has been complied with in the present case the national court – which alone has direct knowledge of the procedural rules governing actions in the field of employment law – must consider both the purpose and the essential characteristics of allegedly similar domestic actions.
Furthermore, whenever it falls to be determined whether a procedural rule of national law is less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts.”
- Ms. Hannaford’s submission was that proceedings under the Regulations are closely analogous to judicial review proceedings. She said that both types of proceedings involve a challenge to an executive decision premised on procedural or other unfairness with the possibility of setting aside the decision if it is determined to have been made unlawfully. Indeed, she submitted that a number of procurement law challenges are brought by way of judicial review. She said that the seven-day time limit imposed by regulation 47F(1) was intended to bring proceedings under the Regulations into line with judicial review proceedings.
- I note that under the Regulations (as amended in 2009), regulation 47J provides that the only remedy where the contract has been entered into, and none of the three grounds for ineffectiveness applies, is by way of an award of damages. By contrast, in proceedings for judicial review a claim for damages alone cannot be made: see CPR 54.3(2). A claim for judicial review is defined by CPR 54.1(2) as a claim to review the lawfulness of (i) an enactment or (ii) a decision, action or failure to act in relation to the exercise of a public function. So, unless one of these remedies is being claimed at the same time, a claim for damages cannot be made by way of judicial review.
- Mr. Coppel submits that a claim by way of judicial review and a claim under the Regulations have a different juridical basis. The Regulations create a private law right of action as between the economic operator and the contracting authority. As I have already explained, judicial review is essentially a public law remedy to review the lawfulness of actions by public bodies.
- Mr. Coppel also points to the longer time period (six months in all cases but two) that applies to applications for a declaration of ineffectiveness provided by regulation 47E(2)(b). As a package, he submits, it cannot be said that the Regulations are less favourable in terms of time limits than the rules relating to judicial review.
- Finally, Mr. Coppel submitted that Ms. Hannaford’s submissions were unsustainable in the light of the decision of the Court of Appeal in Matra Communications v Home Office  1 WLR 1646. At page 1660 Buxton LJ concluded that judicial review was not an appropriate comparator with a claim under the Public Services Contracts Regulations 1993, a predecessor of the Regulations. It is not necessary to analyse this case in any detail, since I understood that Ms. Hannaford was prepared to concede this point.
- Even without this concession, I would still have accepted the submissions of Mr. Coppel. Although the Regulations have been much amended since 1993, it seems to me that the conclusion of Buxton LJ in Matra is still relevant. In addition, I agree with Mr. Coppel – largely for the reasons he gave – that a claim under the Regulations is different in character from a claim made by way of judicial review.
- So far as the application of the principle of effectiveness is concerned, there is in my judgment no arguable case. There is nothing intrinsically difficult about serving a claim form within seven days of its issue (that is the full period of seven days – now that I have rejected the argument that it has to be sent on the fifth day). Since I have reached the conclusion that this is a time limit that can be extended in exceptional circumstances, this will meet the rare case where through no fault of a claimant or its agents it is prevented from serving the claim form in time (for example, perhaps because the office of the issuing court has lost it). It is perhaps a little ironic that, according to the Explanatory Memorandum to the amendments to the Regulations made in 2011, to which Ms. Hannaford drew my attention, the requirement to serve the claim form within seven days of issue was one suggested by the Procurement Lawyers’ Association in response to a public consultation (at paragraph 7.5). Evidently the possibility of a breach of the principle of effectiveness had not occurred to them.
- Of course it means that legal advisers have to be on their toes, but if they are in a position to prepare and issue a claim form it is hard to see why they should not be in a position to serve it in time. To some extent this view is borne out by experience: there are about 50 claims by way of procurement challenges issued each year in the TCC and, so far as I am aware, this is the first occasion on which there has been a problem with service. For the reasons that I have already given, it is a problem that could and should have been prevented.
- For the reasons that I have given I consider that the Claimant did serve the claim form within seven days of starting proceedings as regulation 47F(1) required, but it did not serve it in accordance with the rules of court in that it had not been sealed and did not bear the claim number. This amounted to an irregularity.
- In all the circumstances I consider that it would be fair and proportionate, as well as being in accordance with the overriding objective of the CPR, to cure the irregularity so that these proceedings can be regarded as having been properly brought. Accordingly the application to strike out the claim fails.
- In the circumstances I will extend time for service of the Defence by 21 days.
- In the ordinary way, the Claimant having been the successful party on the application, I would be prepared to award it its costs. However, the Claimant, or more precisely its agent Quigg Golden, failed to serve the claim form in accordance with the rules of court and so the Claimant would have had to make an application in any event in order to cure the irregularity. In the ordinary course of events it would have had to bear the costs of that application. My provisional inclination, therefore, is that there should be no order for costs in relation to this application.
- However, if the parties wish to make submissions in support of a different order for costs I am prepared to hear counsel or, if both parties agree, I will entertain short written submissions and deal with the question of costs on paper.
RELATED POSTS: STATUTORY APPEALS AND EXTENSIONS OF TIME
OTHER POSTS ON THIS BLOG THAT RELATE TO SERVICE
- There are now unexploded grenades in your filing cabinet: service proceedings promptly and properly.
- Service of the Claim Form: What can possibly go wrong? Ten simple points to make life easier.
- Service of the Claim Form: Further traps for the Unwary
- Late Service of the Claim Form, extensions of time and sleepless nights
- Service of the Claim Form: “last known address” points to watch
- Service of the Claim Form: Essential Points before the Essential Checklist
- A Dismal Catalogue of Confusion and Error
- Delaying Service of the Claim Form: Dicing with Procedural Death
- Service of the Claim form: Another claimant comes to grief
- Service of the Claim Form and a good reason: And so to Bed
- Service of the Claim Form can be a problem for defendants too.
- Claim Forms: Declaration that steps taken constitute good service.
- Late service of the claim form: Extension refused: Reminder to serve promptly and properly.