Barton v Wright Hassall LLP
Court of Appeal
23 March 2016
OOO Abbott & Anor v Econwall UK Ltd & Ors
High Court (IPEC)
23 March 2016
The courts have recently handed down two independent judgments regarding the service of proceedings and arrived at contrary decisions, coincidentally on the same day. Andrew Cousins looks at the Court of Appeal decision Barton v Wright Hassall LLP (2016) and the High Court decision OOO Abbott & Anor v Econowall UK Limited & Ors (2016) to determine if the reasoning is inconsistent and what the decisions mean in practice.
Barton v Wright Hassall LLP (2016) CA
In Barton, the claimant was a litigant in person. He brought a claim for professional negligence against the defendant firm of solicitors in respect of their conduct in refusing to continue to act on his behalf in separate professional negligence proceedings which he had commenced against other solicitors.
The claimant served proceedings upon the defendant’s solicitors by e-mail; however this was not a valid method of service accepted by the defendant’s solicitors. The claimant thus found himself out of time to validly serve the claim form and he issued an application seeking an order that service of the claim form and particulars of claim by e-mail be deemed good service.
OOO Abbott & Anor v Econwall UK Ltd & Ors (2016) IPEC
In OOO Abbott, the case against the defendants was that there had been an infringement of a patent and a breach of a licence agreement. The claimant’s claim turned on whether the acts complained of were licensed.
Proceedings were issued and there was considerable correspondence between the parties in relation to an extension of time for service of the claim form. This led to a misunderstanding on the part of the claimant’s solicitor as to when the extension expired and the defendant ultimately took the stance that the claimant was late in serving the claim form. The claimant applied, amongst other things, for an order retrospectively validating service of proceedings.
In Barton, the claimant’s appeal to validate the service of the claim form was dismissed and in the case of OOO Abbott, the claimant’s application to validate the service of the claim form was allowed.
The applications largely centred on CPR 6.15 which sets out the criteria required for the court to validate service.
In the case of Barton, the court undertook a lengthy review of the case law and asked itself the key question as to whether a “good reason” required by CPR 6.15(1) existed to validate the service of the claim form. The court distilled the principles to these points:
In deciding whether steps should be validated under the rule the court should simply ask itself whether there is good reason to do so;
A critical factor in deciding whether to validate service under the rule is that the document has come to the attention of the party intended to be served;
However it is not by itself sufficient that the document was brought to the attention of the opposing party: something more must be present before there is a good reason;
In deciding whether there is a good reason, there will inevitably be a focus on the reason why the claim form cannot or could not be served within the period of its validity, although this is by no means the only area of inquiry;
The conduct of the claimant and of the defendant is relevant. It is not necessary, however, for the claimant to show that he has taken all the steps he could have reasonably taken to effect service by the proper method;
The mere fact that one party is a litigant in person cannot on its own amount to a good reason, although it may have some relevance at the margins;
If one party or the other is playing technical games, this will count against him;
An appellate court will only interfere with the judge's evaluation of the various factors in the assessment of whether there is a good reason if he has erred in principle or was wrong in reaching the conclusion which he did.
In OOO Abbott, the court looked at four considerations: the first is that when considering an application under CPR 6.15 the court should simply ask itself whether, in all the circumstances of the particular case, there is a good reason to make the order sought. Decisions in previous cases are of limited guidance since they depend on their own facts.
Secondly, 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 CPR 6.15(2). On the other hand, the wording of the rule shows that this is a critical factor. Service has a number of purposes but the most important is to ensure that the contents of the document served, here the claim form, is communicated to the defendant. Service is not about playing technical games.
Thirdly, relevant factors include whether service had proved impractical, whether any attempt to pursue it further would lead to unacceptable delay and expense and whether the defendant was unwilling to co-operate by disclosing his address.
Fourthly, “good reason” within the meaning of CPR 6.15 is something less than the exceptional circumstances required by CPR 6.16 under which the court can dispense with service altogether.
The decisions are contradictory to some extent; however there are noticeable differences between the two situations. In the case of Barton, there was seemingly no reason why the claimant could not have served his proceedings within the four months from the date of issue. It is notable that in Barton, the court reminded itself that litigants in person do not obtain special privileges just by being litigants in person.
In the case of OOO Abbott, the court leaned more towards interpreting the defendant’s conduct as creating a trap for the claimant to fall into. The parties had been in discussions about voluntarily extending the time for service of the claim form and the playing of ‘technical games’ was to be discouraged by the courts. There had been no such ‘technical game’ in the Barton case and no criticism could be attached to the defendant’s solicitors for how they had conducted themselves when dealing with this point.
The court drew assistance from the Supreme Court decision in Abela v Baadarani (2013) in which thecourt held that in a case of this kind it has to be asked whether, in all the circumstances of the particular case, there is a good reason to make the order sought. It should not be necessary for the court to spend undue time analysing decisions of judges in previous cases which have depended upon their own facts. The fact that the defendant has become aware of the contents of the claim form is of course not on its own sufficient for an order to be made under CPR 6.15(2). It is a precondition of an application of the sub-rule that there have been "steps already taken to bring the claim form to the attention of the defendant”.
The two decisions do therefore create some confusion as they appear at first sight to be wholly contradictory, but when examined more closely differences can be noted. The guiding principle however should be highlighted that if service of proceedings is left to the last minute then complications can easily arise and a default in service can be detrimental to the whole claim. From a point of view of best practice, service should therefore not be taken lightly and due dates adhered to strictly.