Strict approach to the retrospective cure under CPR 6.15 of defective service

The court’s power in CPR 6.15 to allow service by an alternative means can be used retrospectively to validate steps taken to serve proceedings on foreign defendants where those steps fall short of ‘good service’ under the CPR.  The power is of particular significance in common law (rather than Brussels / Lugano cases) because the act of service founds jurisdiction.

This post considers two recent cases on CPR 6.15: Barton v Wright Hassall LLP [2016] EWCA Civ 177 and Abbott v Econowall UK Ltd [2016] EWHC 660 (IPEC).  They demonstrate that the court will adopt a strict approach to retrospective cure of defective service although a defendant’s conduct may form part of the reason to permit cure.

Practitioners will recall that the rule in CPR 6.15 (set out below) was amended following the decision in Elmes v Hygrade Food Products plc [2001] EWCA Civ 121.  The amendment was to enable the court to make an order retrospectively curing defective service of proceedings in order to establish jurisdiction over a defendant, typically after the claim form has expired.

The decisions in Barton v Wright Hassall and Abbott v Econowall, handed down on the same day, helpfully consider the narrow circumstances in which the court will accede to such an application. Each case concerns service within England and Wales, but the principles equally apply to service outside the jurisdiction.  This post first covers the Barton case and then the Abbott case.

The rule in CPR 6.15

CPR 6.15 provides:

“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

 (2) On an application under this rule, the court may order that 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 Barton case

In Barton, the claimant was a litigant in person who wished to bring professional negligence proceedings against the defendant law firm. In broad outline, the sequence of events was as follows:

  • The claimant issued a claim form to be served within the jurisdiction, which under CPR 7.5(1) was due to expire on 25 June 2013.
  • On 26 March 2013, the defendant’s solicitor, BLM, informed the claimant that they were acting on behalf of the defendant and directed correspondence to be sent to BLM.
  • On 17 April 2013, BLM sent an additional email saying that they awaited service of the claim form and particulars of claim.
  • On 24 June 2013, the claimant emailed BLM with a letter enclosing both documents.
  • BLM did not reply until 4 July 2013, when they informed the claimant that although they had received the documents service was not valid where they had not given permission to be served by email under CPR PD6A.

The claimant applied, among other things, for an order under CPR 6.15 declaring the steps he had taken to serve the claim form on BLM were valid service. He was unsuccessful before the District Judge and on appeal to the High Court.

In the Court of Appeal, the claimant was again unsuccessful.

The Law summarised by the Court of Appeal

Floyd LJ (with whom Moylan J and Black LJ agreed), provided an authoritative and helpful summary of the principles governing CPR 6.15 drawn from the leading authorities[1], as follows:

“19. I would summarise the effect of these authorities in the following way:

i) In deciding whether steps should be validated under the rule the court should simply ask itself whether there is “good reason” to do so: (Abela [35]).

ii) 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: (Abela [36]). That is the whole purpose of service: (Abela [37], [38]).

iii) However it is not by itself sufficient that the document was brought to the attention of the opposite party: something more must be present before there is a “good reason”: (Abela [36]).

iv) 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: (Abela [48], Kaki [33]).

v) The conduct of the claimant and of the defendant is relevant: (Kaki [33]). 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: (Power [39]).

vi) 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: (Hysaj [44]-[45]; Nata Lee [53]).

vii) If one party or the other is playing technical games, this will count against him: (Abela [38]).

viii) 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: (Abela [23]).

The Court of Appeal’s refusal of Barton’s application 

On the facts, the Court of Appeal held that:

  • it was common ground that the District Judge was wrong to have approached the application on the basis of a two-stage test, first considering whether there was a good reason to make an order and then considering whether the judge should exercise his discretion in favour of making the order. The evaluative exercise comprised a single question[2];
  • the Judge was therefore correct to exercise his discretion afresh on appeal; and
  • there was no error of law on which the Court of Appeal could interfere with the evaluative judgment made by the Judge. In particular, the appellant was wrong to say that the Judge had not taken into consideration the conduct of the defendant firm – he had, but there was no basis on which the firm could be criticised.

As to the Judge’s view of the salient factors in the HIgh Court (summarised in the Court of Appeal’s judgment):

  • It was critical that the claim form had been brought to BLM’s attention, however that was not a sufficient factor in itself to amount to a good reason to make the order (referring to paragraphs 33 – 38 of Abela);
  • the fundamental question was whether there was any good reason for why the claimant could not have served the claim form in accordance with the rules. There was no such reason: he had simply failed to understand the rules;
  • there was no basis to give indulgence to a litigant in person in the context of the particular rules in this case, which were easily accessible and understandable; and
  • although technical game-playing may count against a defendant, there was nothing in the defendant’s conduct that could be criticised.  This point was strongly endorsed by the Court of Appeal (at para 49).

The Abbott case

The judgment of Judge Hacon in the Intellectual Property Enterprise Court in Abbott was handed down the same day as Barton, to which it does not refer.

This case concerned proceedings against several defendants for breach of patents relating to ‘snap-in inserts’ made from resilient metal used in display panels for shops. In brief outline:

  • On 3 July 2015 the claimant issued the claim form, which under CPR 7.5(1) was due to expire on 3 November 2015.
  • On 6 July 2015, the claimant served a letter enclosing a photocopy of the claim form on the defendants.
  • On 13 October 2015, the claimants requested an extension until 3 December 2015.
  • On 15 October 2015, the defendants agreed to an extension of one month, meaning until 15 November 2015.  The claimant, however, interpreted this as an agreement of his requested extension until 3 December 2015 (i.e. one month from the expiry of the claim form).
  • On 25 November 2015, the claimant served the claim form. This was out of time being after 15 November 2015.

The claimant applied under CPR 6.15 for a ruling that service of the photocopy of the (unsigned) claim form on 6 July 2015, just after issue, was good service. The court’s decision, which merits a full reading, is interesting for two reasons:

First, the Judge considered, relying on Bethell Construction Ltd v Deloitte and Touche [2011] EWCA Civ 1321, that if an applicant seeks under CPR 6.15  to validate defective service of a claim form after the claim form has expired, he does not in addition need to satisfy the court of the strict criteria that would apply under CPR 7.6(3) to an application to extend time for service of the claim form after its expiry (see paras 28 and 48).

In relation to defendants out of the jurisdiction, this means that an applicant would not need to show that he has taken “all reasonable steps” to comply with the rules on service within 6 months from issue of the claim form but has been “unable to do so”, or that he has “acted promptly in making the application”.  This might be considered surprising, albeit logically these factors will still feed into the court’s discretion in determining whether there is a “good reason” for making an order under CPR 6.15.

Second, notwithstanding the failure to comply with the rules and the strict approach adopted in Abela, the Judge acceded to the application on the basis that the defendant’s solicitors had not complied with the overriding objective, because the solicitor, having doubts as to whether the other side had understood the extension offer, failed to clarify the position with the other side (see paras 36 – 42 and 52 – 54).

The take-away lessons

The take-away lessons from Barton and Abbott are that whilst the courts adopt a strict approach to the application of CPR 6.15, and whilst defendants are under no obligation to assist a claimant, defendants and their representatives must be careful to ensure that the claimant is not suffering from a misapprehension which the defendants or their representatives have caused. If defendants fail to do so, they risk being in breach of the overriding objective.  Such a breach may be a good reason for making an order under CPR 6.15.

Notes

[1] Abela v Baadarani [2013] 1 WLR 2043 (SC), Power v Meloy Robinson [2014] EWCA Civ 898, Nata Lee Ltd v Abid [2014] EWCA Civ 1652, Kaki v National Private Air Transport Co [2015] EWCA Civ Civ 731, and R (Hyasi) v Secretary of State for the Home Department [2015] 1 WLR 2472 (CA).

[2] This appears to be inconsistent with the Court of Appeal’s decision in Bethell Construction Limited v Deloitte and Touche [2011] EWCA Civ 1321 (at para 25), cited in Abbott (at para 26).