Where parties agree that a claim form will not be served until specified events occur, the court will hold parties to what they agreed.
That was the position in Bethell Construction Ltd v Deloitte & Touche. The claimant commenced a professional negligence claim against the defendants for accounting work undertaken in 2000 and 2001. A copy of the claim form was sent to the defendant but expressly on the basis it was not by way of service. The parties then entered into an agreement that service of the claim form would be extended until a specified date or 14 days after written notice of determination of the extension was given by one party to the other, whichever occurred later.
Following a lengthy delay, the claimant resurrected the litigation and, using new solicitors, attempted to serve the particulars of claim on the defendant. No claim form was served. The defendant gave notice determining the extension of time for service. The claim form was still not served. The defendant sought a declaration that the court had no jurisdiction to hear the claim because the claim form had not been served. The claimant alleged that the claim form had been impliedly served. It sought an order that the claim form should be deemed to be validly served or that the need for service be dispensed with.
The court refused to grant the claimant's application. This was not a case of mis-service but of non-service. The parties had reached an agreement and the court needed to uphold the basis upon which they had agreed they would proceed. To hold that there had been good service would subvert the express agreement between the parties. The claim form had not been validly served.
The court also refused to dispense with service of the claim form. There had been no attempt to serve the claim form by an appropriate method within the period agreed for service. The claim form had been expressly delivered not by way of service and had never been re-delivered to the defendant. Neither had the claimant said that, by serving the particulars of claim, the claim form was also thereby served.
The claim form had not been served and the claimant was out of time for bringing its claim which was statute barred.
Things to consider
It is essential to ensure that the claim form is served correctly in accordance with the CPR and any agreement reached between the parties, especially where limitation is an issue. The court has little, if any, sympathy with claimants who leave issuing proceedings and service of the claim form until the last possible moment and then get it wrong.