CPR 3.10 STOPS A CLAIM FROM SINKING: USING THE WRONG FORM NOT FATAL TO AN ACTION

October 29, 2015 · by gexall · in Civil Procedure, Service of the claim form, Uncategorized

In LD Commodities Rice Merchandising LLC -v- The Owners and/or Charterers of the Vessel Styliani Z [2015 ] EWHC 3060 (Admlty) Mr Justice Teare considered a case where the claimant used the wrong form to issue an action, this could have had major, and devastating, consequences. The judge considered the provisions of CPR 3.10 and how they overlap with rules relating to service.

“Where there has been an error of procedure which was culpable and ought never to have happened it can be said, with force, that the court ought not to remedy the error because the court should enforce its rules and thereby encourage careful rather than sloppy practice in the conduct of proceedings. But if by so doing the defendant receives a windfall, namely, the benefit of a time bar defence as a result of inadvertence by the claimant’s solicitor, it can also be said, with force, that a refusal to remedy the error causes an injustice out of proportion to the fault of the solicitor. In deciding which course best serves the overriding objective of dealing with the case justly these two conflicting arguments have to be weighed in the balance.”

SOME ADMIRALTY TERMS: A LANDLUBBER’S GUIDE

To follow the case you have to understand some admiralty terms.

• A claim form in rem is essentially an action against a thing, a ship and sometimes cargo. It enables a claimant to “arrest” the ship and enforce the res by way of judicial sale.
• A claim form in personam is an action against the person (that is the owners or charterers).

(See the explanation in Law Teacher Action in Rem and action in Personam are two legal entities).

THE PROCEDURAL CONSEQUENCES OF THE DIFFERENCE

• An action in rem has its own claim form and a claimant has 12 months to serve.
• An action in personam uses a different claim form and service has to take place within 12 months.

WHAT WENT WRONG IN THIS CASE

The claimant’s solicitor meant to issue an action in rem but, by mistake, used the general admiralty claim form. It was, therefore, an action in personam.

• A copy of the claim form was then sent to the defendants.
• The defendants responded, eventually, stating that the time for service of the claim form (4 months) had expired.
• The claim form was then amended to be an action in rem and served.
• The Admiralty Registrar disallowed the amendment. Since the claim form was in personam and had not been served within four months service was set aside.
• The claimant appealed.

THE JUDGE’S DECISION ON CPR 3.10

23. CPR 3.10 provides as follows:

“Where there has been an error of procedure such as a failure to comply with a rule or practice direction-

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.”

24. Mr. Nolan submitted that there was an error of procedure when Mr. Messent, instead of using form ADM1 to issue the Claimants’ in rem claim, used form ADM1A. That error, which was corrected before the claim form was served, was inadvertent and had neither misled the defendants nor caused them any prejudice. The claim form, which had been sent to the Defendants’ P&I Club shortly after it was issued, informed the Defendants that a claim for cargo damage was being brought against them. In those circumstances the error should be remedied. That would further the overriding objective by ensuring that the claim for cargo damage could be justly determined rather than dismissed without consideration of its merits.

25. Mr. John Russell QC, on behalf of the Defendants, submitted that the Claimants had issued an in personam claim and that their error was a failure to serve that claim form within 4 months. CPR 7.6 governs the court’s discretion to extend time for service and any such application could not succeed because the Claimants had not taken all reasonable steps to serve the claim form within 4 months. CPR 3.10 cannot be used to avoid the strict requirements of CPR 7.6. If there was an error in issuing in personam proceedings by mistake the court should not remedy that error pursuant to CPR 3.10 because to do so would fail to give any or any sufficient weight to (a) the important distinction between claims in rem and claims in personam and (b) the strict approach required where a claim form has not been served within the period of its validity. In addition the Defendants had a legitimate expectation that if the claim form were not served in time the underlying claim would be time barred and were the error to be remedied they would lose the ability to rely on the time bar and would suffer prejudice. [2] Finally, Mr. Messent’s mistake was culpable and there had been delay in attempting to remedy the situation and in attempting to effect service.

26. There is no doubt that Mr. Messent intended to issue a claim form in rem. He told the Claimants on 28 February 2014 shortly after the claim form had been issued that he had issued an ” in rem claim”. There is also no doubt, in my judgment, notwithstanding Mr. Nolan’s arguments to the contrary, that he in fact issued an in personam claim form. He used form ADM1A, which is headed Claim Form (Admiralty claim) and is the form required for in personam claims. It was not headed Claim Form (Admiralty claim in rem) and did not proclaim itself to be an action against the ship STYLIANI Z as form ADM1 requires. It is true that the form described the Defendants (which is suggestive of an in rem claim) but I do not regard that as sufficient to show that he had in fact issued an in rem claim. It is essential that an Admiralty action in rem proclaims that it is an action against a named ship for that is the essential feature of such an action which distinguishes it from an action in personam.

27. Mr. Russell submitted that an error of procedure within CPR 3.10 must be shown objectively and cannot be established merely by reference to Mr. Messent’s subjective intention. This submission was primarily based upon what Dyson LJ said in Steel v Mooney [2005] 1 WLR 2819 but in addition it was said that in other cases ( Cala Homes v Chichester [2000] PLCR 205, The Goldean Mariner [1990] 2 Lloyd’s Reports 215,Thurrock v Secretary of State for the Environment [2001] CP Rep.55 and Hannigan v Hannigan [2000] 2 FCR 650) the error was objectively clear.

28. In Steele v Mooney the claimant’s solicitor had made an application for an extension of the four months period allowed “for service of the particulars of claim and supporting documentation.” The solicitor had not in terms sought an extension of time for service of “the claim form”. At paragraph 28 Dyson LJ said:

“The applications for an extension of time were clearly intended to be applications for an extension of time for service of the claim form, but by mistake they referred to the wrong, albeit closely related, documents ie the particulars of claim. Our reference to what was intended is not to Ms. Watkins’ subjective state of mind. It is to what she must be taken to have intended on an objective assessment of the terms in which the applications were expressed and all the surrounding circumstances.”

29. This passage must be read with other passages in the judgment. Thus Dyson LJ said that errors of procedure may take many forms and are not confined to failures to comply with a rule or practice direction. A party may take a procedural step which is permitted by the rules and practice directions but which he takes in error; see paragraphs 18 and 20. An “error of procedure” in CPR 3.10 should not be given an artificially restrictive meaning. A broad common sense approach was required; see paragraphs 21 and 22.

30. I consider that in paragraph 28 Dyson LJ was saying that in the case before the court Ms. Watkins’ intention could be objectively determined from the terms in which her application was expressed and from the surrounding circumstances. I do not consider that he was saying that in every case a subjective intention was irrelevant when seeking to establish that there had been an error or procedure. If that were so then the scope of CPR 3.10 would be artificially restricted.

31. In the present case Mr. Messent issued a claim form in personam, which he was permitted to do. But he did so in error. There was unchallenged evidence that he intended to issue a claim form in rem. That appears to me to be an error of procedure within CPR 3.10. and the sort of error contemplated by Dyson LJ in paragraph 20 of his judgment in Steele v Mooney as being within CPR 3.10.

32. The Admiralty Registrar, in paragraph 23 of his judgment, concluded that there was no error of procedure. He said

“………there are important distinctions between in rem and in personam proceedings and the process by which they are commenced. These differences are substantial and the failure to issue the proceedings in the proper form is sufficiently important for it not to be excused as being merely ‘procedural’.”

33. I am unable to agree with this approach. Mr. Messent’s error was to use a form which he did not intend to use. That is, it seems to me, an error of procedure. Of course it had important and substantial consequences, in particular the claim form had to be served within 4 months rather than within 12 months. But it remains an error of procedure. In Steele v Mooney at paragraph 18 Dyson LJ said:

“…….the rules provide a detailed code of the procedural steps that parties to litigation may and/or must take and the procedural steps that the court can make. These steps and decisions will sometimes affect the parties’ substantive rights, but that does not alter the fact that they are procedural in character.”

34. The Admiralty Registrar also held that PD 61 para.3.1 was a specific code dealing with the specialist jurisdiction of the Admiralty Court and should not be overruled by general provisions contained within other rules such as CPR 1 or CPR 3.10. He derived support for this approach from the guidance given by the Court of Appeal in Vinos v Marks & Spencer [2001] 3 AER 784. In that case there had been a failure to serve a claim form within the four months allowed for service. CPR 7.6 provides for the extension of time for service of a claim form but the claimant could not obtain an extension of time for service pursuant to that rule. The claimant therefore sought an order pursuant to CPR 3.10 rectifying his error in failing to serve the claim form within the time allowed for service. The Court of Appeal held that the general words of CPR 3.10 could not enable a court to do that which CPR 7.6 expressly forbade or to extend time when the specific provisions of CPR 7.6 did not permit an extension of time. In my judgment the principle of construction engaged in that case (that general words do not derogate from specific words) is not engaged in the present case. There is no specific code in the CPR, whether in CPR 61 or PD 61, dealing with the circumstances in which the court may rectify a claimant’s error in issuing an in personam claim form instead of an in rem claim. PD 61 para.3.1 merely provides that a claim form in rem must be in Form ADM1.

35. The Admiralty Registrar having erred in principle in the above two ways this court must itself consider whether the court’s discretion to remedy Mr. Messent’s error or procedure should be exercised.

36. Mr. Nolan submitted that CPR 3.10 was a most beneficial provision which should be given wide effect. He relied upon the observations of Lord Brown to that effect in Phillips v v Symes [2008] 1 WLR 180 at paragraphs 31-33 and on the observations of Popplewell J in Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm) at paragraphs 22-43 (and see also Stoute v LTA Operations Ltd. [2015] 1 WLR 79 at paragraph 36 per Underhill LJ.).

37. I was also referred to other cases, not in the Admiralty context, in which the wrong form had been used to commence proceedings and the court had corrected the error pursuant to CPR 3.10. Two of them were considered by the Court of Appeal. The first such case arose in the context of family law, Hannigan v Hannigan [2000] 2 FCR 650. In that case a widow wished to institute proceedings under the Inheritance Act 1975 on the basis that the disposition of her husband’s estate did not provide her with reasonable financial provision. Counsel advised that proceedings be issued using CPR practice form N208 (the Part 8 claim form). Such proceedings had to be commenced within six months of the grant of probate. That period expired on 11 June 1999. On 10 June 1999 the solicitor issued the claim but used CCR form N208 which had been in use under the old County Court Rules 1984 which had been superseded. However, the form used set out the nature of the claim and stated that CPR part 8 applied to the claim. The executors of the husband’s will applied to strike out the claim on the basis that it had been issued on the wrong form and that there had been a number of other errors too. That application succeeded but on appeal that decision was overturned. Brooke LJ said at paragraph 35 that the matter fell within CPR 3.10.

38. At paragraph 20 Brooke LJ said that the claim form contained all the information the defendants needed to understand what was being claimed so that the complaint was about form, not substance. The judge below had failed to take that into account and the sanction he imposed was disproportionate to the irregularities he was considering; see paragraph 33. Brooke LJ accepted that the solicitor’s mistake was due to his culpable lack of familiarity with the new rules. But he said, at paragraph 36:

“One must not lose sight of the fact that the overriding objective of the new procedural code is to enable the court to deal with cases justly, and this means the achievement of justice as between the litigants whose dispute it is the court’s duty to resolve. In taking into account the interests of the administration of justice, the factor which appears to me to be of paramount importance in this case is that the defendants and their solicitors knew exactly what was being claimed and why it was being claimed when the quirky petition was served on them. The interests of justice would have been much better served if the defendants’ solicitors had simply pointed out all the mistakes that had been made in these very early days of the new rules and Mrs. Hannigan’s solicitor had corrected them all quickly and agreed to indemnify both parties for the expense unnecessarily caused by his incompetence.”

39. Brooke LJ also referred at paragraph 37 to the “potentially valuable limitation point” but said that the strategy of the defendants had led to the incurring of expense over technicalities which was out of all proportion in relation to what was really in dispute. The result of the judge’s order was the “antithesis of justice”. At paragraph 38 he said:

“Mrs. Hannigan’s claim would be struck out in its infancy without any investigation into its merits and the defendants would receive a completely unjustified windfall simply because of a number of technical mistakes made by a solicitor in the very early days of a new procedural regime.”

40. Brooke LJ concluded that to strike out the claim would be a “totally disproportionate response to the errors that were made”.

41. The second case arose in the context of planning law. In Thurrock Borough Council v Secretary of State for the Environment [2001] CP Rep 55 the claimant council wished to challenge a decision of an inspector who had set aside two enforcement notices. Under section 288 of the Town and Country Planning Act 1990 a challenge could be made as of right to the validity of an order within six weeks of the date of the decision. Under section 289 an application for permission to appeal from the decision could be made to the High Court within 28 days of the date when notice of the decision was given to the applicant. In the event the council included both forms of challenge within a single application for permission to appeal pursuant to section 289. That application was served and filed on 5 April 1990, 26 days after the date of the inspector’s decision. Thus it appears the inspector’s decision was made on or about 10 March 1990. When the matter came on for hearing on 19 May 1990 (which must have been after the six weeks allowed for a section 288 challenge had elapsed) the claimants applied for permission to amend the claim to substitute an application for statutory review under section 288. That application was allowed and an appeal against that decision was dismissed.

42. Brooke LJ said, at paragraph 27, that the amendment did not have the effect of adding a new claim because in substance the claim was for the relief available under section 288 of the Act. He then asked whether the council was to be denied the right to straighten out the formalities of their claim because they had launched it erroneously under the wrong section of the Act. He said that a denial would “greatly inhibit the power of the court to deal with their case justly”. In dismissing the appeal Brooke LJ applied the same principles which he had set out in Hannigan v Hanniganwhere he had said that “in taking into account the interests of the administration of justice, the factor which appears to me to be of paramount importance in this case is that the defendants and their solicitors knew exactly what was being claimed and why it was being claimed…”

43. These cases establish that the court’s approach, when asked to remedy the error of a claimant who, by an error of procedure, has issued the wrong originating process, should be as follows:

44. i) The court’s discretion should be used so as to further the overriding objective to deal with a case justly.

45. ii) In determining what is just the court must take account of all the circumstances of the case.

iii)                In particular, it is necessary to consider whether, notwithstanding the claimant’s error, the defendants were made ware of the nature of the claim which the claimant wished to bring.

1. iv) The order made by the court should not be disproportionate to the claimant’s error of procedure.

2. v) The fact that the claimant’s error was culpable is a relevant matter to take into account but will not necessarily be a bar to the court remedying the error.

3. vi) The fact that the defendants would be able to argue that any fresh issue of proceedings in the correct form would be time-barred is a relevant matter to take into account but will not necessarily be a bar to the court remedying the error.

4. Neither of the cases which establish those principles concerned admiralty proceedings whether in rem or in personam. Nor did they concern a case where the claimant’s error was not objectively apparent to the defendant. By contrast, in the present case and so far as the Defendants’ P&I Club was concerned, the Claimants had issued an in personam claim form. It did not know that Mr. Messent’s intention had been to issue an in remclaim form. For these reasons Mr. Russell submitted that the two cases can be distinguished. I agree that they can. However, the two cases nevertheless establish certain principles underlying the court’s discretion pursuant to CPR 3.10. In deciding whether to exercise that discretion the court must have regard to those principles but have well in mind the circumstances of the instant case.

5. The Admiralty Registrar, when considering how he would have exercised his discretion, appears to have only considered the question whether Mr. Messent’s error was excusable. He held that it was not and concluded that that could not amount to a good reason to exercise the court’s discretion. This was too narrow an approach and was wrong in principle.

6. The course of events between February and October 2014 may be summarised as follows:

7. i) Messent issued proceedings before the (assumed) one year time bar, as extended, had expired.

8. ii) Messent had decided to issue proceedings in rem because he was unsure of the name of the Defendants and for the purposes of an in rem claim needed only to describe them as the Owners of the STYLIANI Z. By a mistake, which he accepts he ought never to have made, he printed out an Admiralty claim form in personam. Although he filled it in (including giving the name and address of the Defendants which “somewhat surprised” him) he failed to observe his mistake. Thereafter, although he was in communication with the Defendants’ P&I Club, he still failed to observe his mistake. Thus, even when it was pointed out to him in July 2014 that he had failed to serve the claim form within the four months allowed for service of a claim in personam he pointed out that the time for service of an in rem claim was modified by CPR 61.3(5). His mistake was culpable.

iii)                He provided the Claimants with a copy of the claim form and they forwarded it to the Defendants’ P&I Club. Thus the P&I Club was aware that proceedings had been issued in time. The P&I Club knew the nature of the cargo claim being advanced against its member. A claim form in rem would not have told the P&I Club anything more about the claim than was set out in the claim form in personam. The cause of action in both cases is the same.

1. iv) Although Mr. Messent failed to serve the claim form within four months (a fact stressed by Mr. Russell) this failure resulted from his initial error in not appreciating that he had issued the wrong claim form. This was not a case of a solicitor, knowing he must serve within four months, failing to take appropriate steps to serve within that period.

2. v) The issue of a claim form in personam gave rise to a legitimate expectation on behalf of the Defendants that if the claim were not served within four months the Defendants would be able to argue that it could not be validly served and that the underlying claim would then be time barred. To that extent the Defendants would suffer prejudice were the court to remedy Mr. Messent’s error.

3. vi) However, were the court to refuse to remedy Mr. Messent’s error, the Claimants’ claim, assuming there to be a time bar, would never be considered on its merits.

vii)              Mr. Messent was advised by counsel in about July that he had issued the wrong claim. He did not immediately issue an application for an order remedying the error pursuant to CPR 3.10. Instead, he sought to remedy the mistake by amending the claim form prior to service. The amended claim form was not served until October 2014. It is not apparent why it was not served in August 2014.

viii)            When the amended claim form was served in October 2014 the Defendants were in exactly the same position as they would have been in had a claim form in rem been issued in February 2014 and served, within the 12 month period for service, in October 2014.

47. I have not found it easy to decide how to exercise the discretion conferred on the court by CPR 3.10. There is a clear distinction between an in rem and in personam claim form which is of particular importance with regard to service. Mr. Messent’s mistake ought never to have been made. As a result of that mistake he had only four months in which to serve the claim form instead of the 12 months which he thought he had. The Defendants are entitled to rely upon the rules of court which regulate the conduct of proceedings in personam. They are not required to enquire what Mr. Messent’s subjective intent was (even if, as here, they are provided with a copy of an email from Mr. Messent which refers to the issue of an in rem claim form). The Defendants appreciated that the claim form had to be served within four months and when the claim form was not served within four months took the time bar point, as they were entitled to do. All these matters suggest that the court ought not to remedy Mr. Messent’s error. A refusal to remedy Mr. Messent’s error in such circumstances would reflect and recognise that an Admiralty action in rem is a different form of action from an Admiralty action in personam and would enforce the rules regarding service of an Admiralty claim form in personam. Such an approach would encourage practitioners to conduct litigation efficiently in accordance with the rules of court.

48. On the other hand, a refusal to remedy Mr. Messent’s error will, if there is a time bar, result in the merits of the Claimants’ cargo claim never being considered by the court. Moreover, the fact that the wrong claim form was used has not deprived the Defendants of any information about the claim which they would have been given had the correct claim form been used. They are in exactly the same position, so far as information about the claim is concerned, as they would have been in had a claim form in rem been issued in February 2014 and served in October 2014. Such service would have been within time. The time bar defence to which they can now lay claim is an unexpected windfall caused by Mr. Messent’s error.

49. By remedying the error the claim the court will be able, in the event that the claim is not settled, to determine the claim on its merits. A refusal to remedy the error would mean that the Claimants would be deprived of a trial on the merits because their solicitor, although he had properly commenced the action within time, had used the wrong court form when doing so. Whilst remedying the error will deprive the Defendants of a time bar defence that defence only arose because the wrong court form was used by the Claimants’ solicitor. These matters suggest that the court ought to remedy Mr. Messent’s error, albeit on appropriate terms as to costs which reflect that error.

50. Having considered the circumstances of this case and the guidance given by the Court of Appeal in the cases to which I have been referred I have reached the conclusion that the just order, and one that promotes the overriding objective, is to remedy Mr. Messent’s error of procedure, for these reasons:

51. i) Notwithstanding the real and clear distinction between an in rem and an in personam claim form it was a matter of indifference to the Defendants whether the Claimants issued a claim form in rem or in personam. Their P&I Club had agreed to instruct solicitors to accept service of either claim form.

52. ii) The Claimants issued a claim form before the time bar, assuming there was one, had expired.

iii)                Mr. Messent’s error in issuing a claim form in personam instead of an in rem claim form which he had intended to issue must have been the result of inadvertence.

1. iv) After the claim form had been issued the Claimants forwarded a copy of it to the Defendants’ P&I Club. The Club was therefore aware that proceedings had been issued within time and were also aware of the nature of the claim, namely, a claim for cargo damage caused by breach of contract and/or duty. The Club was not aware that the Claimants had intended to issue a claim form in rem. But had a claim formin rem been issued the same causes of action would have been relied upon, as indeed they were when the claim form was amended from anin personam to an in rem claim form.

2. v) Upon the issue of the claim form in personam the Defendants did not act to their detriment in any way.

3. vi) Although the Defendants were entitled, once the Defendants had failed to serve the claim form within 4 months, to argue that the underlying claim was now time barred, that was the result of Mr. Messent’s fortuitous act of inadvertence in issuing a claim form in personam and in failing to observe that it was such a claim form. The availability of the time bar defence was a windfall to the Defendants.

vii)              In those circumstances a refusal to remedy the error of procedure would not be proportionate to Mr. Messent’s culpable inadvertence because, assuming there was a time bar, the merits of the claim would never be considered.

viii)            To remedy Mr. Messent’s error on terms that the Claimants pay the costs of the application and the Defendants’ reasonable opposition thereto would be a proportionate response to Mr. Messent’s error.

1. ix) Whilst the court’s discretion to extend the time for service of a claim form after that time has passed is subject to what Mr. Russell described a “strict approach” the Claimants are not seeking such an extension of time in the present case. They are seeking an order remedying the Claimants’ earlier error of procedure in issuing an in personam rather than an in rem claim as had been intended.

2. x) Whilst there was an unexplained delay in service until October 2014 and, it may be added, in applying for relief pursuant to CPR 3.10 (that application was only made in response to the Defendant’s application to disallow the amendment of the claim form) I do not consider that such delay was such as to justify the refusal of an order remedying Mr. Messent’s error. He sought to remedy the matter himself in August 2014 by amending the claim form and served the amended claim form well within the 12 months allowed for service of an in rem claim form.

3. xi) Ultimately, the court must decide this application in such a way as will further the overriding objective of dealing with the case justly. One aspect of dealing with a case justly is to decide it in accordance with the rules of the court, in this case, those which regulate the issue and service of Admiralty claim forms in rem and in personam. Where there has been an error of procedure which was culpable and ought never to have happened it can be said, with force, that the court ought not to remedy the error because the court should enforce its rules and thereby encourage careful rather than sloppy practice in the conduct of proceedings. But if by so doing the defendant receives a windfall, namely, the benefit of a time bar defence as a result of inadvertence by the claimant’s solicitor, it can also be said, with force, that a refusal to remedy the error causes an injustice out of proportion to the fault of the solicitor. In deciding which course best serves the overriding objective of dealing with the case justly these two conflicting arguments have to be weighed in the balance. I have sought to do so and have concluded that remedying the error but with an appropriate order as to costs is the course which best serves the overriding objective of dealing with the case justly. Such an order not only enables the case to be dealt with on its merits, rather than ended prematurely by the operation of a fortuitous time bar, but also recognises that the Claimants’ solicitor made an error which he ought never to have made by making an appropriate order as to costs.

4. For these reasons I have decided to allow the appeal and to remedy the Claimants’ error of procedure on terms that the Claimants pay the costs of the application and the Defendants’ reasonable opposition thereto.

COULD THE E-MAIL TO THE DEFENDANTS AMOUNT TO SERVICE?

The claimant argued that an e-mail sending a copy of the claim form to the Defendant amounted to good service.  It was not necessary for the judge to consider this point. However he considered it and held that it would not have amounted to service, not would an order by made under CPR 6.15.

57.               As with the question of the amendment it is unnecessary to consider the appeal against the Admiralty Registrar’s refusal to hold that the Claimants’ email to the Defendants’ P&I Club dated 3 March 2014 amounted to good service. I shall therefore express my conclusions shortly.

58.               CPR 6.15 provides that the court may order that steps already taken to bring the claim to the attention of the defendants by an alternative method are good service.

59.               The Admiralty Registrar appears to have held that before the court will exercise this power there must be an exceptional case. It is accepted by Mr. Russell that this approach was in error; “exceptional circumstances” is the test under CPR 6.16, not CPR 6.15. However, the Admiralty Registrar also held that in circumstances where the email of 3 March 2014 did not purport to be service and indeed was inconsistent with an intention to serve it would not be appropriate to treat it as good service.

60.               The email of 3 March 2014 informed the Club that proceedings had been issued. The attachment to the email contained a copy of the claim form. However, the email went on to say that unless something positive was received “we will be required to request Andrew [Messent] approach the Association for appointment of solicitors …and thereafter effect service…” Thus the email did not purport to be service and expressly contemplated that service would take place at a later date. I agree with the Admiralty Registrar that it would not be appropriate to order that a step taken to bring the claim form to the attention of the Defendants is good service where the terms in which that step was taken were to the effect that it was not service and that service would occur at a later date.

Tags: CPR 3.10, Sanctions, service of the claim form