The claimant, a litigant in person, sought to serve his claim form on the solicitors appointed by the defendant's insurers by email. Under the CPR, service by email is only allowed where the recipient has previously confirmed in writing that it is willing to accept service in this way. This was not the case here (the claimant had thought that the solicitors would accept service by email because their website did not say that they would not allow service in this way). The solicitors had only informed the litigant in person that service was not valid after the time for service had expired (and the claim was now time-barred). When the claimant's application under CPR r6.15(2), for an order that the steps he had taken to bring the claim form to the attention of the defendant should count as good service, was refused, he appealed to the Court of Appeal. The Court of Appeal has summarised the key principles to be derived from prior caselaw as follows:
- The court must be satisfied that there is a "good reason" to validate service.
- A critical factor is whether the claim form has come to the attention of the person intended to be served. However, that in itself is not a sufficient reason for making the order.
- When assessing if there is a good reason, the reason why the claim form was not served properly will be taken into account, as will the conduct of the claimant and defendant. However, it is not necessary for the claimant to show that he has taken all the steps he could have reasonably taken to effect service by the proper method.
- The fact that a party is a litigant in person will not in itself amount to a good reason, although "it may have some relevance at the margins".
- If one side is playing technical games, this will count against it.
On the facts of the case, the Court of Appeal was satisfied that the judge had applied the correct test. The claimant had had no good reason not to effect service properly: "The claimant had simply not taken advantage at all of the generous time period allowed for service, when no obstacles stood in his way". Nor did it matter that he is a litigant in person: the rule was not difficult to find or ambiguous. The Court of Appeal also said that no criticism could be levelled at the solicitors. They had been under no duty to inform the claimant of the defect in service and they had done nothing to encourage the claimant to believe that he had effected good service. Furthermore, "they would need to take their clients' instructions before expressly alerting the claimant to the defect in service, thereby exposing their clients to an action which would otherwise be statute barred".
Accordingly no order was made under CPR r6.15(2).