Jones v Chichester Harbour Conservancy and others [2017] EWHC 2270 (QB)

The facts

The claimant fell from a tree in the vicinity of Chichester Harbour and was rendered paraplegic. The claimant pursued a claim for personal injury against all three defendants and for limitation purposes successfully applied to extend time for service of the claim form until 17 January 2017.

The claimant sent the claim form to the first defendant at 4:27 pm on 17 January via email and the hard copy was physically received by the first defendant on the following day.

The first defendant applied for an order from the court that service of the claim form had been invalid and that the court lacked jurisdiction to hear the claim.

Decision

The High Court concluded that when determining whether or not a claim form had been served during its period of validity it was necessary to ascertain whether the claimant had carried out the step required by CPR, r. 7.5 within the time provided for doing so.

CPR, r. 7.5 provides that a claimant must complete a valid method of service, such as serving by fax or other electronic method etc. before midnight on the calendar day, four months after the date of issue of the claim form. In contrast, CPR, r. 6.14 states that a claim form is deemed to have been served on the second business day after completion of the relevant step under CPR, r. 7.5 in respect of methods of service.

It was stated that this equally applies to cases where the time for service was extended by order of the court and to cases where the basic four or six month period of validity applied. The court also stated that the provisions in CPR, r. 6.14 in respect of the “deemed date” of service had to be given an interpretation which provided meaning and this provision operated as a means to ensure that it was clear to the parties what date was to be used for the purpose of calculating the date for serving the acknowledgement of service and serving the defence etc.

The High Court held that CPR, r. 7.5 was intended to help the claimant avoid the trap of being out of time for service under CPR, r. 6.14. However, CPR, r. 7.5 also assisted the defendant because it made a reasonable assumption as to how long, as a matter of fact, the claim form had taken to arrive after being posted, so it represented a fair approach for calculating when time would start running for when a response was due.

It was noted that if there was no assumption as to how long it would take for a claim form to be received after it had been served by a particular method, the time for service of a defence would start to run from the instant the claim form was posted, which would be a strange and unfair approach because in the real world, a defendant could not realistically be in receipt of the defence at this stage.

In this case, the court order had not said that time under CPR, r. 7.5 had been extended but the judge had extended the time for service of the claim form. The High Court held that upon proper interpretation of the order, it had been intended that an extension would be permitted for the claimant to take the necessary steps under CPR, r. 7.5. Also, the High Court noted that the claimant’s application had been for an extension of time to comply with CPR, r. 7.5 so as a result, the claim form had been validly served during the relevant period, in this case, by the date provided in the court order.

As a result, the first defendant’s application was dismissed.

What this means for you

This is an interesting case where the court considered the relationship between the provisions in CPR, r. 7.5 and CPR, r. 6.14, which govern service of claim forms.

In this case, the High Court appears to have been swayed by the fact that the claimant’s initial application had been made to extend the time for carrying out the steps under CPR, r. 7.5 for service of the claim form. As a result, it was seen that the claimant had until midnight on 17 January 2017 to carry out a method of service as set out in CPR, r. 7.5, which they had done, as the claim form had been sent to the first defendant by email at 4:27 pm.

The judge held that the purpose of the “deemed date” provisions in CPR, r. 6.14 were to fix the dates for when subsequent steps, such as serving the acknowledgement of service or serving the defence etc. are calculated. It was seen that CPR, r. 6.14, was not in every case to be used for fixing the date for when the claim form was served.

This decision indicates that the issue of when service takes place and therefore when the requisite deadline for service has been met will be determined by reference to when the step required in CPR, r. 7.5 took place, and not when service was deemed to have occurred under CPR, r. 6.14. This approach applies equally to cases where the court has ordered an extension of time for service and where the basic four or six month period of validity applies.

This decision is somewhat at odds with the High Court case of Brightside Group Ltd v RSM UK Audit LLP [2017] EWHC 6 (Comm), where it was held that the specified date for compliance with a CPR, r. 7.7 notice had to be tested by specific reference to CPR, r. 6.14 and not by when the claimants complied with CPR, r. 7.5. A CPR, r. 7.5 notice is where the defendant serves notice on the claimant requiring them to serve the claim form or discontinue their claim within the time specified in the notice.

In this case, the High Court held that the decision in Brightside only applied to cases not dealing with the validity of service of the claim form but even if this was not the case, then the deemed service provision under CPR, r. 6.14 could not render service of the claim form invalid if the relevant step under CPR, r. 7.5 had been carried out within the validity period.

As a result, this decision represents a departure from the approach in Brightside and arguably endorses Flaux J's comments in T&L Sugars Ltd v Tate & Lyle Industries Ltd [2014] EWHC 1066 (Comm) and Green J's obiter views in Ageas (UK) Ltd v Kwik-Fit (GB) Ltd [2013] EWHC 3261 (QB), that the date of service is to be determined by reference to CPR, r. 7.5 and not CPR, r. 6.14.

As a result of this judgment, there appears to be conflicting High Court decisions on this issue. It is therefore essential that the deemed date of service provision under CPR, r. 6.14 is taken into account when considering any deadlines.