In this article, I discuss the key issues that arose following the claimant’s application for an order pursuant to CPR 6.15(2) that the steps already taken to effect service of the claim form constituted good service and the court’s crucial decision which led to the application being dismissed.
The claimant brought a claim on behalf of the estate of the deceased and in her own right for personal injuries and consequential losses following a tragic accident that occurred on 22 April 2019. Liability was disputed and Keoghs was instructed to act on behalf of the defendant.
A letter of claim was served by the claimant on 11 August 2021. A letter of response was served disputing liability and a protective claim form was issued on 21 April 2022 due to limitation. On 18 August 2022, the defendant agreed that the claim form could be served by email. At approximately 9.30am on 18 August 2022, the claimant’s solicitors purported to serve the claim form by email as previously agreed between the parties.
However, 18 August 2022 passed and a copy of the claim form had not been received. I contacted the claimant’s solicitors and requested a further copy, including a copy of the original correspondence in which the claimant purported to serve the claim form. Following receipt of the correspondence, it was noted the claim form had been served using an incorrect email address which had not been in use for a period of some 15 years. It was submitted on behalf of the defendant that the claim form had not been received and that the service was defective.
Following the issue being drawn to the claimant’s attention, they issued an application on 15 May 2023 seeking an order pursuant to CPR 6.15(2) 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 “application”).
The Claimant
The claimant accepted that the email purporting to serve the claim form on the defendant was sent to an incorrect and hyphenated email address which had been stored on the claimant’s solicitor’s system as a result of previous contact many years ago. At no point prior to 18 August 2022 had we corresponded with the claimant’s solicitors using the hyphenated email address, and it had not been agreed to use that email address to effect service of the claim form on 18 August 2022.
It was accepted by the claimant that they must persuade the court that there is a “good reason” for it to approve an incorrect method of service, on a retrospective basis, pursuant to CPR 6.15(2).
It was the claimant’s case that the defendant was aware of the existence of the claim form and the general nature of the case against it, as set out in the letter of claim, and that this was a highly important factor which pointed towards retrospective approval of service by a method not otherwise permitted by the rules.
The Defendant
We submitted on behalf of the defendant that the court has a discretion to permit service of the claim form by an alternative method or at an alternative place under CPR 6.15(1) but that discretion only arises if it appears to the court there is a good reason to do so.
It was submitted that a careless error by the claimant’s solicitors in failing to use the correct email address for service of such an important document is not a “good reason” to permit service by an alternative method, namely, service to the incorrect email address. Secondly, it was submitted the claim form did not, in fact, come to the defendant’s attention within its period of validity, i.e. within four months after the date of issue of the claim form, pursuant to CPR 7.5.
The application was heard in the High Court of Justice on 6 December 2023, and judgment was handed down on 29 January 2024.
The judge, in reaching her decision, stated there is no previously reported case where the facts are similar. While the judge had great sympathy with the claimant, she held that there was no basis on which the claimant could show that there was a good reason to authorise service by an incorrect email address. The reason why an incorrect email address was used was an oversight, and it was entirely possible for the claimant to have used the correct email address.
The judge concluded it was a careless attempt at service of a critical document and there was no evidence that the claimant’s solicitor had ever checked that the document had been properly served, or that it had been received by the defendant. The precise contents of the claim form had not been brought to the defendant’s attention and it was not for the defendant to alert the claimant to the error.
In the circumstances, the claimant’s application under CPR 6.15 was dismissed. As the claim form was not validly served in time, the court did not have jurisdiction over the claim.
Previous case authorities, when dealing with an application under CPR 6.15, demonstrate the function that the specific rule serves, that is, as a mechanism whereby the court may order that good service has taken place where the defendant is positively evading service, and where proceedings have in fact come to the attention of the defendant, or are likely to have come to the attention of the defendant by some other means.
CPR 6.15 is often relied upon in the context of service out of the jurisdiction, where, for example, a claimant encounters difficulties. What CPR 6.15 does not do is provide a remedy to claimants who have, by reason of an oversight or error, failed to properly or validly serve proceedings.
For more information, please get in touch.
Ashley Tolfrey, Solicitor
Property Risks & Coverage
Email: atolfrey@keoghs.co.uk
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