TAKING TECHNICAL POINTS AS TO SERVICE: JUDICIAL “DISMAY” THAT THE MATTER WAS PURSUED

One of the most difficult decisions that litigators now face is whether to take “technical points”. Technical points, particularly as to service of the claim form, can potentially bring proceedings to a premature end. However there are risks as well as benefits. I am grateful to barrister David Boyle  for sending me a copy of the decision of Her Honour Judge Staite in De Souza -v- Perry (a copy of which is attached here De Souza – -judgment.doc (amended)).

“Bearing in mind the significance of the application in terms of the impact on the claimant’s solicitor professional indemnity insurance in the event that the claim were to be struck out, I am concerned about the relentless pursuit of this application to a hearing… rather than the solicitors engaging in constructive discussion to resolve procedural issues in the case at a preliminary stage of the litigation.”

THE CASE

The claimant brought a claim for damages following his suffering significant injuries in a road traffic accident. Liability was admitted.

THE DEFENDANT’S APPLICATION

The defendant applied to strike out the action on the basis that only a copy of the claim form had been served by the claimant.

  • However at the outset of the hearing it was verified that the defendant had in fact an original claim form with “solicitor service” marked in red on the face of the sealed claim form.
  • The original bar coded sticker with the date of issue had inadvertently been stuck on the first page of the response pack rather than on the face of the sealed claim form. It was, however, an original bar code.
  • The defendant, however continued to argue that the  belief of the claimant’s solicitor appeared to be incompatible with proper service of the claim form, further the failure to serve a certificate of service meant that it was for the claimant to apply for relief from sanctions.

THE JUDGE’S (FORCEFUL) VIEW OF THE DEFENDANT’S STANCE

14        Having heard the competing submissions of the parties, I am bound to express some dismay that this application was pursued and a ruling sought in circumstances where, at the outset of the hearing on 23rd October 2015, both counsel recognised that contrary to arguments which had been raised in Ms Harris’ statement concerning the invalidity or otherwise of copy documents with which she had allegedly been served on 6th July 2015, she had in fact received an original sealed claim form (in compliance with the rules) and that the only defect within the documents received by Kennedys had been the erroneous placement of an original bar coded sticker by the court staff on the first page of the response pack rather than on the claim form itself. The thrust of the submissions on behalf of Kennedys at the hearing were directed to the apparent misunderstanding on the part of the claimant’s solicitor about service and his failure to respond to the stance taken by Ms Harris in her letter of 17th July 2015.  In my judgment, the submission that the court should rule in favour of the defendant’s application on the grounds that the claimant’s solicitor may (or may not) have appeared to express some doubt about whether proper service had been effected in July 2015 and had failed to respond directly to the contents of Ms Harris’ letter of 17th July 2015 represents a misguided –and, if I may say so, disingenuous – endeavour to deflect the attention of the court from the reality of what took place in July 2015 following the issue of the claim form. As Mr Boyle said (and I agree with him) the defendant solicitors –who are highly regarded in the field of personal injury work –had one job only which was to receive the claim form (and accompanying documents) once they had been issued and sealed by the court. While Mr Roberts may have misunderstood the impact of the new rules in relation to the involvement of the court in serving documents once a claim was issued and may, inadvertently, have named the wrong defendant when the proceedings were first issued, I am satisfied that these matters did not affect the substance or intrinsic procedural regularity of the service of the claim and accompanying documents which were sent to Kennedys on 6th July 2015.
15        In my judgment, Miss Harris sought to capitalise on a relatively minor procedural defect – the lack of a bar code on the face of the sealed claim form – and, in the erroneous belief that she had received a sealed copy of the claim form, then engaged in tactical manoeuvring in order to resist service of a substantial claim within the relevant limitation period. Bearing in mind that liability has never been in issue in this case (with numerous interim payments made to date) I have concluded that there was a degree of opportunism on the part of Kennedys which was borne out (as I find) by the failure to disclose the first page of the response pack whether as a copy in exhibit form to Ms Harris’ statement or in original form until shortly before the hearing was due to commence on 23rd October 2015. The application to strike out the proceedings was therefore being advanced on the unsound basis that only a copy of the claim form had been served on Kennedys when the claim form (and the bar coded sticker on the response pack) were original documents. Bearing in mind the significance of the application in terms of the impact on the claimant’s solicitor professional indemnity insurance in the event that the claim were to be struck out, I am concerned about the relentless pursuit of this application to a hearing with (as I find) undue and unnecessary reliance placed upon Ms Harris’ apparent perspective of the case in a letter of 17th July 2015 rather than the solicitors engaging in constructive discussion to resolve procedural issues in the case at a preliminary stage of the litigation.
16        I have also considered dicta of the Court of Appeal in Denton  v White (& Others) [2014]EWCA Civ 906 and particularly Paragraphs 41 and 42 of the judgment (the reference to parties working together to ensure that, in all but the most serious case, satellite litigation should be avoided) and the observation made in the joint judgment of the Master of the Rolls and Vos LJ (Paragraph 43) that the court will be more ready in the future to penalise opportunism if applications to the court are made when they could have been averted in the spirit of cooperation between the legal representatives.
17. On the particular facts of this case, I find that the claimant did effect service of the proceedings before 9th July 2015 and that service was not compromised by any subsequent communications between the solicitors including a failure on the part of the claimant’s solicitors to respond to the letter from Ms Harris dated 17th July 2015. To the extent that there was any defect or flaw on the face of the claim form (and/or accompanying documents) this did not justify an application for relief from sanctions and could previously have been remedied by the application of CPR3.10 which I consider can now be applied to remedy any outstanding errors of procedure including remedying the time for service of the filing of the certificate of service by the claimant’s solicitor to 10th September 2015.

RELATED POSTS: SERVICE OF THE CLAIM FORM

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