When Master McCloud commented “April and indeed May are, notoriously, ‘bluebell time in Kent’, but on the Masters’ corridor those months this year have yielded only a dry and unlovely crop of procedural service issues”, she was, of course, referring to what seems to be a growing concern relating to the service of court proceedings. Whether that is down to practitioner incompetence or the pressures relating to costs cutting remains to be seen.
Whatever the reason, in her judgment in Caretech Community Services Ltd V (1) Russell Stanley Oakden (2) Allcare Community Care Services Ltd (3) Lisa Berry Master McCloud refers to a number of other cases, which provide guidance and insight on the perils and pitfalls of bad service.
This case concerned an application for Master McCloud to validate “good service” retrospectively. It was between the claimant and the third defendant (Mrs Berry). In an earlier judgment, the claimant failed to prove that they had effected service on the third defendant and made this application under r.6.15(2) of the Civil Procedure Rules (service of the claim form by an alternative method or at an alternative place).
Prior to the expiration of the 4-month period for service of the claim form, a photocopy of the claim form (and no response pack) was sent to the to the third defendant’s solicitors. Additionally, the covering letter that was sent at the time, by post and by email, indicated that the claim form was being provided “for information.” It was also agreed that those solicitors had not been authorised to accept service.
The claimant argued “steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”
The third defendant argued that the court’s powers under CPR r6.15(2) were only available if there had been “mis-service” (an attempt to serve which had gone wrong) as opposed to “non-service” (complete failure to deliver or purport to deliver the claim form), and that there was no “good reason” to make an order under this rule. Master McCloud decided that approaching this rule by trying to divide cases into those of “mis-service” and “non-service” was not helpful here.
Master McCloud held that when considering relief under this rule, it is critical that the form and contents has come to the defendant’s attention, but that alone is not enough. CPR r6.15(2) cannot be used where a claim form has been provided expressly “for information” only (i.e. not for service). Additionally, good service generally requires delivery of a hard copy document, as sealed and issued by the court (unless via electronic means) so the photocopy was not satisfactory.
Unsurprisingly, the court refused to validate that retrospectively as “good service” under CPR r.6.15(2). Regardless, the claimant had failed to show any “good reason” to validate service retrospectively since they had known that service was disputed before the claim form had expired and it had known the third defendant’s correct address where it could simply have served the claim form by post at any time during its validity. The claimant had not taken advantage of the generous time period allowed for service when serving validly would have been easy.
In summary, although a copy of the claim form had been delivered to the solicitors in order to bring it to the attention of the defendant, that step was not capable of being “service” because the claimant had elected to state that delivery was “for information”. Alternatively, there was no good reason to allow a claim form, which was expressly delivered on that basis to be validated as service after the event, since it could have been easily rectified but was not done so.
This case serves a reminder to litigators to take extra care regarding service in such a pressured environment.