Solicitors leaving a claim form in their reception waiting to be collected by the DX courier service cannot say that action counts as service, the Court of Appeal has ruled.
London firm Edwards Duthie Shamash (EDS) was representing occupiers of flats within a building in Barking which was damaged by a fire. The claimants sued Bellway Homes, the developer and constructor of the building, for personal injury, physical damage and economic loss.
But in earlier proceedings Master Dagnall had ruled the claimants had failed to show that they had served the claim form by 4pm on 21 April 2023. In the Court of Appeal, the claimants argued that the judge had been wrong to make that finding.
Ruling in Bellway Homes Limited v The Occupiers of Samuel Garside House, Lord Justice Coulson commented: ‘In relation to the service of the claim form, it appears that EDS were rather casual about the date of 21st April 2023. For instance, on the face of the correspondence, little if anything happened in the two months leading up to that critical date.’
On the afternoon of that date, between 3.49pm and at least 4.03pm, EDS attempted to send the claim form by a series of fax transmissions, all of which failed. The documents were then placed in a designated area of the EDS office reception for collection by the DX courier.
David Satwell, for the claimants, argued that the court should infer that the claim form was left out for collection by the DX service before 4pm, and that this therefore constituted compliance CPR 7.5.
But Coulson said there was no basis for such an inference, stating ‘the evidence points firmly the other way. The claim form and other documents were the subject of the frantic faxing between around 3.40pm and at least 4.03pm. Unless there were copies, if the claim form was still being faxed after 4pm, it could not have been simultaneously out for collection by the DX.’
The judge added that even if the claim form was left out for collection by DX before 4pm, that would still not constitute compliance with r.7.5 as a matter of law.
‘The document must be left with the DX service’, Coulson said. ‘In my view, that requires an act of transmission by the claimants: in essence, the passing on of the document from the solicitor into the possession of the DX service. You do not leave a document with the DX by having it in your reception for their collection at some point in the future.'
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