Attitude of the courts to applications for alternative service of the claim form

The solicitors in this case served a claim form by email but that was not valid service because the defendant had not indicated in writing that he would be willing to accept service in this way. A judge made an order pursuant to CPR r6.15(1) permitting service by an alternative method but that order was not complied with. When the claimant applied for default judgment, the defendant argued that the claimant had not served him correctly yet. That argument was rejected by the court and default judgment was entered. The defendant then appealed against that order.

In considering this matter, Langstaff J reviewed the attitude of the courts to applications under CPR r6.15. He noted that prior caselaw demonstrates that there will be very few, if any, acceptable excuses for failure to observe the rules for service of claim form. In Brown v Innovatorone (see Weekly Update 23/09) Smith J was not persuaded that the power conferred by CPR r6.15 should be exercised only in exceptional circumstances, but he did accept that the court should adopt a rigorous approach. In particular, the absence of prejudice to a defendant was relevant but not sufficient itself for an order. However, the judge also noted a “second strand of authority” which has a “different emphasis”. This authority supports the view that there is no useful purpose in forcing a claimant to start fresh proceedings where the relevant limitation period has not yet expired.

In this case, though, the judge had been wrong to take account of a failure to file a certificate of service in time and so the appeal was allowed. Exercising his discretion anew here, Langstaff J held that he should make an order pursuant to CPR r6.15(2) (which allows a court to order that steps already taken to bring the claim form to the attention of the defendant by an alternative method should be good service).