The interplay between CPR 7.5 and CPR 6.14 has been considered in a number of cases concerning valid service of a claim form, most recently in Jones v Chichester Harbour Conservancy and others.
Prior to October 2008, the date of deemed service of a claim form had to fall within the four month period of validity of the claim form. CPR 7.5 was then amended, so that what had to be completed within the four month period was “the relevant step” rather than deemed service.
CPR 7.5 now provides:
“(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.”
CPR 6.14 states:
“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).”
Consequences of late service
If service of the claim form is out of time, the defendant can apply for the claim to be struck out. Where the claimant does not serve the claim form at all, or serves late, the claim does not automatically lapse, but remains extant until either the claimant serves a notice of discontinuance, or the court orders that it is set aside (see Aktas v Adepta). There may also be costs consequences for the claimant (see Webb Resolutions Ltd v Countrywide Surveyors Ltd).
Where service is late and the limitation period for the claim has expired, any attempt by the claimant to continue with the claim is likely to be met by a limitation defence, with relief from the court only available in limited circumstances. Where the limitation period has not expired, the claimant will need to consider whether to issue a new claim form, or whether it can be agreed with the defendant that no point will be taken on late service.
In either situation, there is a risk that the claimant will seek compensation against a practitioner responsible for the failure to ensure valid service, and also risk of a wasted costs order. Solicitors should therefore be very careful to ensure that the claim form is validly served on time.
Decision in Jones
In Jones v Chichester Harbour Conservancy and others, Master McCloud held that a claim form had been validly served where it was posted within the period of its validity under CPR 7.5, as extended by a court order, despite the date of deemed service under CPR 6.14 falling outside that period.
The master found that, given the significant amendments to CPR 7.5 in October 2008, a purposive interpretation is required. She stated that the correct approach is to ascertain whether the claimant has carried out the step required by CPR 7.5 within the time provided for doing so. This, she said, would apply equally to cases where time for service has been extended by order and to cases where the basic four month period of validity applies.
In relation to CPR 6.14, the master held that the deemed date provisions operate as a means to ensure that it is clear to the parties the date that is to be used for the purpose of calculating, for example, the date for service of an acknowledgment of service or a defence.
The master’s judgment is a welcome one. It is sensible, given the clear, instructive wording of CPR 7.5. Furthermore, her decision correlates with the commentary in the White Book as to how valid service is effected, as well as the comments made by Flaux J in T & L Sugars Ltd v Tate & Lyle Industries Ltd and Green J in Ageas (UK) Ltd v Kwik-Fit (GB) Ltd.
However, the master’s decision may be inconsistent with the prior case of Brightside Group Ltd and others v RSM UK Audit LLP and others. In that case, Andrew Baker J was considering service of a claim form in compliance with a CPR 7.7 notice requiring the claimants to serve or discontinue proceedings by a specified date. He held that whether the claim form was served on time had to be determined in accordance with CPR 6.14 rather than CPR 7.5. The question dealt with in Jones was not at issue in Brightside. However, Baker J stated that CPR 6.14 fixes the date on which service of a claim form occurs for all, not only for some, purposes.
The master in Jones found that Brightside was authority for the proposition that, with the exception of the question of whether a claim form was served while still valid under the four or six month period of validity (whether extended by court order or not), the deemed date provisions of CPR 6.14 operate in all other cases so as to determine the date of service. However, the master did say that if she was wrong in her interpretation of Brightside, then, in her respectful judgment, Baker J’s observations were incorrect and she was not in any event obliged to apply his decision.
The decision in Jones would suggest that, as long as the step required by CPR 7.5 is taken before midnight on the calendar day four months after the date the claim is issued, the claim form will have been served on time.
However, if Baker J’s observations in Brightside were that a claim form is not validly served where there is compliance with CPR 7.5, but deemed service under CPR 6.14 is not within the four month period, there may now be inconsistent High Court decisions on this point following Jones.
While a claimant should be able successfully to rely on Jones and the commentary in T & L Sugars and Ageas where the step under CPR 7.5 is taken on the last day of the four month period, the safest course of action is to comply with the strict interpretation in Brightside. Where possible, practitioners should ensure that the deemed date of service of a claim form under CPR 6.14 falls within the four month period set out in CPR 7.5. Indeed, given the potential costs consequences stemming from the issue of a claim, the claimant’s decision to proceed with a claim should ideally be made before it is issued whether or not that claim is subsequently served on the defendant. The claim can then be served on time within the four month period.
However, in situations where the claimant is facing a limitation deadline, but has not completed its investigations to determine the strength of its claim, or the parties are still trying to resolve the matter through pre-action correspondence, the ability to issue a claim to protect the position on limitation and make use of the four month period before serving that claim is a very useful one. Practitioners should carefully calculate the last date on which the CPR 7.5 step must be taken in order for deemed service to fall within the four month period. They should then either take the step on or before that date, or seek an extension of time for service under CPR 7.6 well before that date arises.
Where an application is made for an extension of time under CPR 7.6, the master in Jones considered that the resulting order extends time for compliance with CPR 7.5 whether or not that is stated on the face of the order. Nevertheless, the master did comment that the order in Jones might have been better expressed by making specific reference to CPR 7.5. It would thus be sensible to seek express reference in the order to CPR 7.5 when making such an application.
The master’s decision in Jones provides welcome clarification to the “tension” between CPR 7.5 and CPR 6.14 and gives effect to a sensible reading of those rules. However, given the potentially inconsistent observations in Brightside, further clarification may be required before the position is absolutely clear and practitioners can rely fully on Jones. This does unfortunately mean that the safest option is to ensure the date of deemed service falls within the four month period, a step which the rule change in October 2008 appeared to seek to avoid.