Court of Appeal decides effect of court serving claim form where claimant notified it wished to serve

For claims brought in the Queen’s Bench Division (including the Commercial Court and the Technology and Construction Court) and the Chancery Division, the presumption is that the claimant’s solicitor, rather than the court, will serve the claim form on the defendant. However, in this case, the claimant issued his claim form in the Central London County Court and hence the court would normally serve the claim form. However, the claimant’s solicitors notified the court (in accordance with CPR r6.4(1)(b)) that they wished to serve the claim form. The court then mistakenly served the claim form and the claimant’s solicitors advised the defendant’s solicitors that that service was to be treated as ineffective (the claimant wished to serve the claim form later in order to await the outcome of certain separate misconduct proceedings). 

District Judge Avent held that service by the court had been effective (the solicitors’ notification to the court not being binding) and that CPR r3.10 (which provides that an “error of procedure” does not invalidate any step taken in the proceedings (without a court order) and the court may make an order to remedy the error) did not apply here because this had been an error by the court, not the litigant. He made an order retrospectively extending time for service of the particulars of claim (which had not been served with the claim form).

HHJ Mitchell allowed the appeal against that decision and the claimant appealed to the Court of Appeal.

The Court of Appeal has now held that CPR r3.10 does apply to this case and accordingly, service by the court had been effective service. Furthermore, the district judge had been entitled to exercise his discretion to extend time. The claimant’s failure to serve the particulars of claim had not been “intentional” because he had not believed that the claim form had been validly served yet. That was also a good explanation for his failure to serve the particulars on time.