A recent case provides clarification and guidance on the issue of service by the courts in contravention of the claimant’s instructions.
Does the fact that a court, contrary to the instructions of the claimant, serves the claim directly on the defendant nullify service? This novel question came before Underhill LJ in Stoute v LTA Operations Ltd t/a Lawn Tennis Association  EWCA Civ 657.
Before discussing the decision of the county court and the Court of Appeal, we must first review the main rules under Civil Procedure Rule 6 (service of documents) as to who should serve the claim form and how proceedings are commenced under CPR 7.
CPR 6.4 details who is to serve the claim form and states:
‘… the court will serve the claim form except where –
(a) a rule or practice direction provides that the claimant must serve it;
(b) the claimant notifies the court that the claimant wishes to serve it; or
(c) the court orders or directs otherwise.’
CPR 7.2 (issuing of proceedings) states:
‘(1) Proceedings are started when the court issues a claim form at the request of the claimant.
(2) A claim form is issued on the date entered on the form by the court.’
There may be a substantial gap between the date on which a claimant requests the issue of a claim form and the date on which it is actually issued. To deal with any potential limitation issues, practice direction 7A at paragraphs 5.1 and 5.2 states:
‘5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purpose of the Limitation Act 1980 and any other relevant statute on that earlier date.
‘5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.’
Although an initial claim for racial discrimination had been settled with the defendant, the claimant, through his father (Mr S), commenced further proceedings against the defendant in the Central London County Court (CLCC) on 10 February 2012. On that day, Mr S tried, unsuccessfully, to issue the claim form in the High Court after which he took it to the CLCC where he was incorrectly informed that the claim form would have to be issued in the County Court Money Claims Centre (known as the Salford Business Centre (SBC)).
The court accepted the form for transmission to the SBC and date-stamped it as evidence of receipt. That stamp was important for limitation purposes (paragraphs 5.1 and 5.2 of PD 7 above). The claim form was accompanied by a letter from the claimant’s solicitor informing the court office that the form should be issued and that it should not be served but that it should be returned to them for service. The particulars of claim were to follow.
The claim form was eventually issued in March 2012 but instead of following the claimant’s solicitors’ instructions, the SBC served the claim form itself by sending it directly to the defendant by first-class post.
The defendant’s solicitors wrote to the claimant’s solicitors asking them to note their interest, to which the claimant’s solicitors replied that the form has been serviced in error and that it had been referred back to the CLCC and put right, and that it would be served within four months of issue. The defendant’s solicitors took that statement at face value and treated the service as ineffective.
The claimant’s solicitor believed that the claim should have been issued on 10 February. The claimant’s father attended in person at the CLCC and managed to persuade the clerk to amend the issue date from 8 March to 10 February. The claimant’s solicitors also lodged what purported to be an application by the claimant’s solicitor under rule 7.6 for an extension until 14 September 2012 of the time for serving.
However, the application was rejected by the district judge because the statement of truth was not signed and that it was, in any event, premature. It was made without notice to the defendant’s solicitors.
By the time the signed version of the application was lodged the deadline was approaching, but unfortunately the court then lost the file. The application was eventually dealt with on the papers on 28 August by District Judge Avent who granted the application. In light of the fact that the court had lost the file he thought it right to extend time to 16 November.
A copy of the district judge’s order was served on the defendant’s solicitors who applied to have the extension set aside. If that were granted then the proceedings would be out of time for limitation purposes. On 15 November the claimant’s solicitors served the claim form accompanied by particulars of claim, but as a precaution against the defendant’s application to set aside being successful the claimant issued fresh proceedings.
County court decision
The district judge held that the service by the court in March had been effective service, notwithstanding that it was contrary to the claimant’s notification that he wished to effect service himself. This was not an uncommon problem. He noted that, although solicitors will normally request that the issued claim form be returned to them to serve, there will be occasions when covering letters accompanying the claim form will go astray or may not be read properly.
The district judge noted that service was effective on the facts, albeit irregular. He dismissed the defendant’s argument that the court’s actions in serving the claim form contrary to the claimant’s instructions meant that it was nullified. As the judge explained:
‘I cannot see that the wording of the rule is such that it invests it with a mandatory requirement such that if any request made under it is not adhered to that should invalidate the service. If that was ever the intention of the rule then I am sure that express provision would have been made for it.
‘On the contrary, it seems to me that CPR 6.4(1)(b) is simply directive. It is not binding. The fact that the court may have effected service in error does not, in my judgment, negate that service. It is a practical fact and one then has to deal with the consequences.’
He dismissed the contention that CPR 3.10 (general power of the court to rectify matters where there has been an error of procedure) could be invoked because, according to the district judge, it applied to litigants and not the courts. It would lead to confusion and to applications to set aside service which would unnecessarily use scarce court resources and time.
The conclusion that there had been effective service of the claim form in March had various consequences, one of which was that the claimant was in breach of his obligations under CPR 7.4 to serve particulars of claim within 14 days of service of the claim form. The district judge found that there was mutual mistake on behalf of both the parties regarding service.
The defendant was content to acquiesce with the claimant’s solicitor’s analysis that the claim form had not been served by the court. In any event, it would be contrary to the overriding objective if the claim was to be struck out when the defendant had been complicit in the mistake.
Further, the defendant was fully aware of the case against it by virtue of the claim form in March 2012 and the issues between the parties were clearly rehearsed in correspondence between them. The defendant had also had the particulars of claim for over two months. The district judge was of the opinion that the case showed deep and fundamental divisions between the parties and the claimant should be given a forum for his allegations to be heard.
Consequently, the district judge exercised his case management powers to enable the case to proceed, and in doing so the district judge explained: ‘If in doing so it should be felt that I am straining the rules too far then I would simply observe that it means that the overriding objective is doing its job. It is allowing for flexibility and practicality to achieve fairness and justice, and not putting those concepts into a straitjacket; it is putting the parties on an equal footing without wasting any more time and expense in arguing about procedural matters, which would not be proportionate.
‘What the parties require overall is certainty of outcome: in other words, has there been discrimination or not? This can best be achieved by getting the case on for trial sooner rather than later given that it was now issued almost a year ago.’
The defendant appealed. Hearing the appeal, Mitchell J held that the service by the court in March 2012 was a nullity because it was effected contrary to the claimant’s notification that he wished to effect service himself. The claimant appealed.
Court of Appeal
Underhill LJ began by considering whether CPR 3.10 applied in the circumstances of the case. In his view it did because the language of the rule is not confined to errors by a party, and the policy considerations which underlie the rule would seem to be the same whether a procedural mistake is the responsibility of the party or the court (Phillips v Symes (no. 3)  UKHL 1). The defendant submitted that CPR 3.10 could not apply for three reasons which the Court of Appeal rejected.
The defendant’s first argument was that the term ‘error of procedure’ in CPR 3.10 could not be applied to an act which was a nullity and that service by the court in this case was such an act. All three expectations under CPR 6.4 (a)-(c) had to be approached in the same way, and therefore since service by the court where some rule or practice direction provided for service by the claimant (that is, CPR 6.4 (a)) or where the court itself had ordered service by someone else (CPR 6.4 (c)) would be a nullity, the same must apply to CPR 6.4 (b).
His lordship reinforced his reasoning when he held: ‘More substantially, there is nothing contrary to the fundamental scheme of the rules, or radically unfair to the parties, in allowing such service to stand subject to any contrary order under rule 3.10(a). There is nothing wrong in principle about service being effected by the court: on the contrary, that is the primary route for which the rules provide. The claim form will of course come formally to the attention of the defendant, which is the essential purpose of the rules about service.’
The defendant’s second argument was that the circumstances of the case fell within the ambit of CPR 7.6 and accordingly resort could not be had to CPR 3.10 as a backdoor means of obtaining relief which would not otherwise be available. However, rejecting this argument Underhill LJ was of the opinion that ‘… the purpose for which rule 3.10 is relied on in the present case is to establish that such service was effected, albeit by the wrong person. There is an analogy, though the cases are not identical, with the decision of this court in Steele v Mooney, where a defective application for an extension of time to serve the claim form was held to be rectifiable under rule 3.10: Vinos v Marks & Spencer Plc  3 All ER 784 was distinguished on the basis that there was a difference between a case where an application had been made which did not conform to the rules, and one where no application had been made at all (see per Dyson LJ, giving the judgment of the court, at paragraphs 25-30 (pp. 2825-7)).’
The defendant’s third argument was that if CPR 3.10 was applied then this would create grave uncertainty: parties need to know where they stand.
This final argument was also rejected by Underhill LJ, who was of the opinion that ‘a defendant who is served by the court in a case of this kind will typically be unaware that the claimant had notified a wish to effect personal service. If the claimant decides not to object, the claim will simply proceed without difficulty. Of course the claimant may object, but he will in practice be bound to do so promptly and any uncertainty created by the irregularity will be resolved by the court. It is no doubt possible, though it will be untypical, that the defendant may discover at some later stage in the proceedings that service was effected in disregard of the claimant’s wishes; but if the effect of rule 3.10 is as I would hold that would give rise to no uncertainty – rather the reverse.’
Finally, the court held that the district judge had correctly exercised his discretion in considering all the circumstances of the case when extending time to serve the particulars of claim. The court allowed the claimant’s appeal.
Stoute is important because it provides clarification and guidance on the issue of service by the courts in contravention of the claimant’s instructions and the fact that such service will be regarded as valid. Therefore, if a party wishes to serve the claim themselves then they would be well advised to tread carefully when requesting the court to issue proceedings.
The case also provides valuable guidance and judicial interpretation on the scope and application of CPR 3.10 and its interrelationship with procedural errors by litigating parties as well as the courts.
Masood Ahmed, University of Leicester