27th August 2021
Walker Morris commercial dispute resolution specialists Lynsey Oakdene and Kathryn Vickers highlight a recent case in which the claim form was set aside because it was served late and the court declined to exercise its case management powers.
The decision in R (Good Law Project) v Secretary of State for Health and Social Care  is a cautionary reminder for all litigating parties of the importance of getting the timing and method of service of documents right. The procedural rules can be complex and the courts’ approach strict. While this particular case concerned judicial review proceedings in relation to a procurement challenge where tighter time limits apply than in most other types of claim, the lesson applies in relation to all types of claim.
When taking any step in a dispute – whether pre-action, at the point of issuing proceedings or once the proceedings are on foot – ensure that you check and follow the requirements set out in the Civil Procedure Rules and consult any relevant Court Guide. Remember that there may be different rules and time limits applicable to different types of claim. Failure to comply with rules and court orders can be devastating to a case. If you do make a mistake, take immediate steps to rectify it and seek appropriate relief from the court – do not delay. Unless there is a good reason for doing so, do not leave it to the last minute to take a procedural step.
When serving documents, including claim forms, be aware of the effect on calculation of time, depending on the method used. Ensure that you keep within the prescribed timeframes. With the widespread use of technology and remote working, check for any specific provisions regarding electronic communications.
The case also serves as an example of how a defendant can take tactical advantage of errors made by a claimant in relation to service in order to entirely avoid a claim, regardless of the possible merits. Such opportunities might be missed if a defendant does not fully understand the requirements of the relevant rules.
The court had to decide whether service of the claim form was valid and, if not, whether it should rectify any deficiency or extend the time for service. The decision is being appealed to the Court of Appeal and it will be interesting to see whether the court’s strict approach is upheld in this case.
Proceedings are started when the court issues a claim form. A claim form is ‘issued’ on the date entered on the form by the court. Where the claim form is served electronically, the party being served (or their solicitor) must have indicated in writing their willingness to accept electronic service and provided the relevant address. As this case concerned judicial review proceedings, the procedural rules required service of the claim form on the defendant within seven days after the issue date.
The defendant’s solicitors specified in pre-action correspondence the email address to be used for service of new proceedings. On the day the claim was filed at court, the claimant’s solicitors emailed the unsealed claim form to that address. The court issued the claim form the following day, by printing the court seal on it and allocating a claim number. The claimant’s solicitors then emailed the sealed (issued) claim form to the individual defendant solicitors named in correspondence, but not to the specified address. One of the individual solicitors confirmed receipt.
The day after time for service had expired, the defendant’s solicitors queried validity. A copy of the sealed claim form was then sent to the specified address on that day, one day late.
Firstly, the court considered and rejected the claimant’s case that there was irregular, but otherwise valid, service. A procedural error does not invalidate any step taken in the proceedings (unless the court orders otherwise) and the court may remedy the error. In this case, however, the sending of the unsealed claim form was not ‘a step taken in the proceedings’, because the proceedings were not started until the court issued the claim form the following day. There was no valid service of the claim form within the prescribed timeframe.
Citing principles from Supreme Court authority , the court went on to decline to authorise alternative service. The claimant had argued that the defendant was playing “technical games”, since it was made fully aware of the existence and content of the claim form on the date proceedings were started. Crucially, the court said, service of the claim form can be distinguished from other procedural steps because it is the act by which the defendant is subjected to the court’s jurisdiction. A “bright line rule” is necessary to determine the exact point from which time runs for subsequent steps in the proceedings, or to confirm the point at which it stops running for limitation purposes.
It was clear that the claimant did not take reasonable steps to effect service in accordance with the rules. The defendant was very clear that service must be effected through the specified email address. The claimant did not take any step to serve the sealed claim form by the specified method within the prescribed timeframe. The fact that the defendant was aware of the form’s contents within the timeframe was not sufficient to justify the exercise of the court’s power. The claimant argued that the defendant would suffer no prejudice by retrospective validation of the non-compliant service of the claim form but, if the court granted the relief sought, the defendant would suffer prejudice because it would be deprived of any accrued limitation defence.
Finally, the court refused to grant the claimant an extension of time . The failure to effect valid service was serious and significant. In the absence of valid service, the defendant was not subject to the court’s jurisdiction. The delay was one day but against the benchmark of seven days. The reason for the failure was a careless mistake made by the claimant’s solicitors. Extending time would deprive the defendant of any accrued limitation defence. A material circumstance in this case was the very tight deadline imposed by the Public Contracts Regulations 2015 for challenges to the lawfulness of a decision in respect of a public procurement contract. In those circumstances, it would not be appropriate to grant an extension and the claim form was set aside.
Our large team of specialists advises clients in every industry sector, ranging from multinational corporations and major financial institutions through to SMEs and high profile individuals. If you need any advice or assistance in relation to the issues raised in this briefing, or have other questions concerning dispute resolution options and strategy, please contact Lynsey, Kathryn or any member of the Litigation & Dispute Resolution team.
  EWHC 1782 (TCC)
 Barton v Wright Hassall LLP  UKSC 12
 Using the test laid down in Denton v White  EWCA Civ 906: After (1) assessing whether the breach is serious or significant and (2) the reason for it, the court goes on to (3) consider all the circumstances of the case.