Last month I gave my ten top tips for service of proceedings. As if on cue the Supreme Court has just given judgment in Barton v Wright Hassall LLP  UKSC 12, a case concerning an unsuccessful attempt to serve proceedings by email. In my top tips I highlighted the Court’s power to retrospectively validate service under CPR 6.15(2) as probably the most helpful rule for claimants and it is that very rule which the Supreme Court has just considered again.
Mr Barton attempted to serve proceedings at the very end of the period of the validity of his claim form, which Lord Sumption described as courting disaster. Mr Barton tried to serve it by email but that was invalid because Berrymans Lace Mawer LLP, the solicitors acting for the defendant, had not agreed to accept service of the proceedings by email. By the time the appeal reached the Supreme Court there was no issue about the fact that service was invalid and the case simply turned upon whether a retrospective validation of service should be granted.
The Supreme Court affirmed the following principles of general application:
- The test for alternative service is whether, in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service.
- A critical factor is whether the claim is brought to the attention of the person to be served but the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2).
- The question is whether there is good reason for the Court to validate the mode of service used, not whether the claimant had good reason to choose that mode.
- The object of CPR 6.15(2) is to open up the possibility that in appropriate cases a claimant may be enabled to escape the consequences for limitation when a claim form expires without having been validly served.
Application of the Principle
The Supreme Court emphasised that what constitutes “good reason” is a matter of factual evaluation in a particular case, which is not to be over-analysed and does not require extensive citation of authority. Lord Sumption identified the following as likely to be the main relevant factors:
- Whether the claimant has taken reasonable steps to effect service in accordance with the rules.
- Whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired.
- What if any prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what he knew about its contents.
By a majority the Supreme Court decided not to retrospectively validate Mr Barton’s attempt at service. Mr Barton was not treated more favourably because he was a litigant in person and the Court did not accept the rules about electronic service were obscure. Indeed, difficulties created by electronic service were highlighted. The Court was critical of Mr Barton in not taking steps to serve the claim form by a permitted method and considered that the “desultory” email correspondence he had had with BLM did not entitle him to consider proceedings could be served by email. The Court emphasised the danger of leaving service to the last minute and did not accept Mr Barton’s argument that BLM were playing technical games by taking a point about service. Rather, the Court highlighted the “palpable” prejudice the defendant would suffer in terms of the loss of a limitation defence if service was validated.