Caretech Community Services Ltd v Oakden and others [2017] EWHC 1944 (QB)

The case was in respect of the interpretation and application of the Civil Procedure Rules (CPR) in relation to service of the claim form. The principles from this case will apply to all civil claims, to include all casualty claims.

Here, the court was required to interpret the meaning of CPR, r. 6.15(2) as to the availability of relief in principle, discussion of concepts of “non-service” versus “mis-service” and “good reason” and the manner of exercise of the courts discretion to validate service by the wrong method and/or at the wrong place.

The facts

At a previous trial, the judge had rejected evidence from a process server that the claim form has been served on the third defendant at their home. As a result, the court held that there had been no service of the claim on the third defendant and default judgment was set aside.

The claimant made an application under CPR, r. 6.15(2) seeking an order that the court retrospectively validate the claimant’s service of the claim form on the third defendant. The claim form was delivered by post and also by email to the third defendant’s solicitors but, at the time, they were not on record as acting for the third defendant and were not authorised to accept service.

The third defendant’s solicitors argued that the court’s powers under CPR, r. 6.15(2) were only available where there had been an attempt to serve the proceedings but this had gone wrong and not in a case where there had been “non-service”. It was also argued that CPR, r. 6.15(2) permitted retrospective validation of service by an alternative method or at an alternative place, but not both together. Also, the third defendant submitted that there was no “good reason” for the court to validate service under CPR, r. 6.15(2).

Decision

The courts had the power to validate service retrospectively where there had been errors as to method and as to location but it was unhelpful for the parties to try and divide cases into those of “mis-service” and “non-service”.

The High Court noted that service could not be retrospectively validated under CPR, r. 6.15(2) where the claim form had been delivered expressly on the basis that it was for “information”. It was noted that the third defendant’s solicitors were not on record and had not been instructed to accept service, which were points that were inconsistent with retrospective validation to make it good service.

The High Court held that there was no good reason to permit documents expressly delivered on the basis that they were not being served, to be retrospectively validated as good service. The third defendant’s solicitors were entitled to treat these documents as not being formally served and the documents sent in the post were copies and not originals.

The claimant’s application was not successful because they had not intended for formal service to have taken place and had known that there was a dispute as to service before the expiry of the claim form. The claimant had also known the third defendant’s address for service, so it was held that they could have served the claim form by post at any time directly on the third defendant within the limitation period.

What this means for you

This case highlights the importance of validly serving court documents within the relevant period. Here, the claimant was out of time with serving the pleadings so looked to the court for retrospective validation of the claim form as being good service.

The court took a common sense approach in respect of the rules of service because there was no intention on the claimant to formally serve the pleadings on the third defendant’s solicitors. Also, the claimant had known that the third defendant was disputing that service had been carried out and could have simply served the pleadings on the correct address for the third defendant. These factors were taken into account by the court when it was concluded that there was no good reason to retrospectively validate service.

In the current climate the burden is on a claimant to ensure that service is valid and effective as it will be extremely difficult to obtain the court’s permission to validate service retrospectively as there will need to be good reason for this.

It is important to challenge the validity of service in cases where proceedings do not appear to have been served correctly. It is important to check where the proceedings have been served, whether this was at a permitted address provided by the defendant and whether service was carried out within the relevant timescale. Also, it should be checked whether copy documents were served and whether there was any reference to the documents being served for “information” only purposes.