Court cures defective service where insufficient copies of the claim form were served

The claimant purported to serve proceedings on the UAE and Indian defendants by serving process agents appointed by the defendants as agents for service. It was common ground that each defendant should have been served with a separate original claim form and response pack. However, here, only one copy of the claim form was served. The claimant accepted that service had therefore been defective.

The judge rejected an argument that a Part 11 jurisdiction challenge cannot be used to challenge service: "any challenge to jurisdiction (including service) should proceed by way of Part 11 challenge". Furthermore, it could not be said that a challenge had been waived because the defendants had filed an Acknowledgment of Service: this was not a case like "The Conti Cartagena" [2014], where the acknowledgment of service was made before service had ever been effected (and there therefore could be no dispute as to the effectiveness of service).

However, the judge held that this was a case where CPR r3.10 (which provides that the court may make an order to remedy an error of procedure) operated. The defect had no prejudicial effect here, since the defendants had been effectively informed that proceedings had been commenced against them. Nor was there any limitation issue, and so another claim form could just be issued and served, which would be "a triumph of form over substance". Furthermore, "this is a case where a procedural step was taken defectively rather than omitted or performed directly contrary to a rule. So although on one analysis one might say that service on some of the Defendants was omitted in the absence of sufficient Claim Forms, the covering letter makes clear that service was being attempted to be effected against all the Defendants. Effectively some of the procedural boxes were ticked, but others were not".