Court retrospectively validates service of claim form on solicitors who were not authorised to accept service but permission to appeal is given
The Claimant issued its claim form on 19 June 2017, a day before the limitation period applicable to its claim expired. It purported to serve the claim form by sending it to the Defendant's solicitors on 17 October 2017. Shortly after the time for service had expired, the Defendant's solicitors advised that they had never been instructed to accept service and so service was defective (and now out of time). The Claimant sought an order from the court that the steps it had taken to bring the claim form to the Claimant's notice (by an alternative method or at an alternative place) should constitute good service.
The Defendant's solicitors had not given written notification to the Claimant's solicitors that they were instructed to accept service. The Claimant's solicitors had not asked the Defendant's solicitors to confirm that they had such authority. However, Master Bowles made the requested order. Crucial to his decision was the comment by Lewison J in Abela v Baadarani [2011] that service is not "about playing technical games". Master Bowles held that "by comparison with other cases, where, for example, a claim form has been provided 'for information' ... in this case, [the Defendant's solicitors were] aware from 17th October and within the lifetime of the Claim Form, that the service effected was intended to commence the necessary processes under the CPR for dealing with the Claim. On that footing, it can ... well be said that the position adopted by [the Defendant's solicitors], in failing to draw attention to the defect in service, amounted to the playing of a technical game".
After the draft judgment was sent to the parties in this case, the judge's attention was drawn to the recent Supreme Court decision in Barton v Wright Hassell [2018] (reported in our last Newsletter), in which it was held that the Defendant's solicitors were not under any duty to advise the appellant that service was invalid and "[n]or could they properly have done so without taking their client's instructions and advising them that the result might be to deprive them of a limitation defence. It is hardly conceivable that in those circumstances the client would have authorised it." Master Bowles' view was that the Supreme Court had not been asked to consider (as he had been) the impact and effect of the duty to further the overriding objective and he felt that the Supreme Court had not given any answer on that point. He did, however, give permission to appeal his decision to the Court of Appeal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.