Service of the Claim Form should be a straightforward exercise. However, as a number of recent cases have shown, contentious and disputed service points continue to be decided by the courts. Indeed, in Caretech Community Services Ltd v Oakden [2017] EWHC 1944 (QB), Master McCloud started her judgment with a homage to Lord Denning, observing: “April and indeed May are, notoriously ‘bluebell time in Kent’, but on the Masters’ corridor those months this year have yielded only a dry and unlovely crop of procedural service issues.”
The harvest continued into September. In Paxton Jones v Chichester Harbour Conservancy [2017] EWHC 2270 (QB), the claimant received an extension of time from the court to serve the Claim Form and duly completed the relevant step under Civil Procedure Rule (CPR) 7.5 (in this case posting the Claim Form) on the day the extension expired. The defendants contended that the Claim Form was, in fact, served out of time because under CPR 6.14 the deemed date of service fell after the extension of time had expired.
The defendants’ position was not as speculative as it might initially appear. There was little clarification that CPR 6.14 did not apply in these circumstances and related case law provided some succour to the defendants. In particular, the defendants cited Brightside Group v RSM UK Audit LLP [2017] EWHC 6 (Comm) in which Andrew Baker J held that CPR 6.14 determined the date of service of a Claim Form in circumstances where service had been requested under CPR 7.7.
In Paxton Jones, the master found for the claimant, observing that if CPR 6.14 was applied in these circumstances then there would be a “’dead’ period of a day or two” before the deadline for service when the Claim Form could not be served without it being out of time under the deemed service provision in CPR 6.14. Many practitioners would agree that this is a logical interpretation of the rules but the reward for the defendants, if successful, was immense and the master acknowledged that the defendants’ construction of the rules “was not a fanciful one”.
Paxton Jones highlights the continued uncertainty created by the interplay in different circumstances between CPR 7.5 and CPR 6.14: an “unfortunate tension” remarked upon by the master. It seems only a matter of time before CPR 7.5 and CPR 6.14 are reformulated to make it clear in what circumstances each rule should be applied. Such a clarification would dissuade parties from chancing their arm on this type of service point. In the meantime, practitioners would be well advised expressly to refer to the relevant service rule in draft orders or when seeking agreement regarding service with the other side to avoid any misunderstanding arising at a later date.
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