ANOTHER CLAIM FORM CASE: WHY IT CAN BE DANGEROUS FOR A DEFENDANT TO TAKE TECHNICAL POINTS

The decision of Master Mathews in DB UK Bank Limited -v- Sinclair Solicitors [2015] EWHC B29 (Ch) has today been reported on Bailli.  It is a case that shows the dangers of taking technical points as to service.

“if I had decided that the defendant was right and that the claimant was prima facie out of time to serve the claim, I would have strained every purposive, constructionist sinew available to me in interpreting the rules so that this claim form was to be treated as served in time.”

KEY POINTS

  • The claimant had complied with an order extending time for service of the claim form when the documents were placed in the Document Exchange.
  • The “deemed service” provisions in the rules did not mean that the claim form was deemed to be served out of time.

THE CASE

The claimant issued proceedings.  An order was made extending time for service.
“Upon the claimant and the defendant having agreed terms under Part 7.6 of the Civil Procedure Rules and by consent, it is ordered that –
(1) The claimant be granted an extension of time for service of the claim form and Particulars of Claim of two months to 7 September 2015;
(2) Costs in the case; and
(3) This order shall be served by the claimant on the defendant’s solicitors.”

SERVICE OF THE CLAIM FORM

The claim form was sent by fax at 16.03 on Friday the 4th September and put in the Document Exchange on the same day.

THE DEFENDANT’S APPLICATION

The defendant applied to dispute jurisdiction on the grounds that the documents had not been served in time.  The argument centred around what was meant by “service of the claim form”.

THE RULES AS TO TIME FOR SERVICE
  1. The first relevant rule is rule 6.3 which sets out the methods of service of a claim form within the jurisdiction. I do not need to set it out. The one thing that I notice is that it does not deal in any way with the timing of service. It is only concerned with methods. Timing is covered by rule 6.14. It is, I think, the only provision in Part 6 which deals with the timing of service. It says this:
“A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).”
I simply add that, of course, this is a case of a claim form served, if at all, within the United Kingdom. It is also to be noted that the provision actually refers to completion of the relevant step under rule 7.5(1). So there is clearly a distinction being drawn between two matters: one is the date of deemed service, and the other the completion of the relevant step.
  1. The next rule that I should refer to is rule 7.5. This is headed “Service of a claim form”, and is divided into two sub-rules. The first reads:
“(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.”
Then there is a table set out. The first column headed “Method of service” and the second “Step required”. The first entry under “Method of service” is “First class post, document exchange or other service which provides for delivery on the next business day”. Under “Step required” it states, “Posting, leaving with, delivering to or collection by the relevant service provider”. Then further down the column under “Method of service”, it provides “Fax”, and under the “Step required”, it states, “Completing the transmission of the fax”. I do not need to read any other part of sub-rule (1).”

THE DEFENDANT’S ARGUMENTS

The defendant argued that the order extended time for service to the 7th September. As a result of 6.14 it was not deemed served until after that date.

THE MASTER’S DECISION

The Master rejected the defendant’s arguments. . CPR 7.5 meant that service took place in compliance with the order when the claimant placed the documents in the Document Exchange.

  1. But, in my judgment, that double function of rule 6.14 was taken away in 2008 when the current form of rule 7.5, which I have already read, was introduced. The technique which had been relied on up until then was as set out in paragraph 36 of Anderton, whereby the claimant had to bear in mind the provision for deemed service in order to build an extra two days into whatever step he was proposing to take. Henceforth, the draftsman of the new rule 7.5(1) left the obligation, or cast the obligation, of the claimant simply in terms of taking a step; that step had to be taken within four months. So there was no question of any deeming provision having effect in relation to that.
  2. Having therefore removed one of the two functions of rule 6.14, however, the second one remains. That is to set a timetable for the future action. In my judgment, that is now the sole or main function of that provision.

CONSTRUING THE RULES

There are interesting observations in relation to how the Master would have construed the matter .

  1. But I add this. It is absolutely crystal clear that the defendant did have the documents in time. The defendant did know in time exactly what they contained. It is only the technical argument based on the effect of rule 6.14 that gives the defendant any chance to complain about what has happened in this case. It would have had no discernible effect on the proceedings themselves had the defendant not made this argument and it would have caused the defendant no prejudice whatsoever. Indeed, it is the defendant that has caused prejudice to these proceedings by holding them up in this and, in the case of a claim which has been brought at the end of the limitation period, that can only increase the potential problems which may arise hereafter. This is unacceptable. Accordingly, if I had decided that the defendant was right and that the claimant was prima facie out of time to serve the claim, I would have strained every purposive, constructionist sinew available to me in interpreting the rules so that this claim form was to be treated as served in time. In the result, however, the meaning was clear, so that no purposive construction was needed. Accordingly, I dismiss the application”.

RELATED POSTS: SERVICE OF THE CLAIM FORM

One comment

  1. This one was surely a no brainer? Wasn’t 7.5 changed several years ago to get around issues like this? The claimant took the ‘step required’ to serve the claim form in good time. No question of ‘deemed service’ arises in this context.

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