Time-honoured service

Time-honoured service

District Judge Stephen Morley is bang up to date as he unravels the case law confronting late servers of claim forms and particulars of claim The Civil Procedure Rules 1998 (CPR), rule 7.5(2) should be deeply embedded in the minds of all litigation lawyers wishing to avoid professional negligence claims, who will know in their sleep that as a general rule a claim form must be served within four months after the date of issue.

However, the distractions of professional life are such that four months go by somehow sooner than they should, and the anxious solicitor can be confronted with only a couple of days to serve.

Before sticking a first class stamp on the envelope and putting one's trust in the post, it is worthwhile looking at the relevant provisions of the CPR as applied by Anderton v Clwyd County Council (2001) LTL 28 August 28 QBD and Godwin v Swindon Borough Council [2001] All ER (D) 135 (Oct).In Anderton, following an extension, time for service expired on a Sunday, and the Friday before, the claimant's solicitors maintained that the first-class stamp went on the letter enclosing the claim form which in turn was entrusted to Royal Mail.

CPR rule 6.7(1) provides that when sent by the first class post, service is deemed to be effected on the second day after it was posted and hence, said the claimant's solicitors, it was duly served on the Sunday.

The defendant's solicitors maintained that the claim form had not been received until the Tuesday, and was thus out of time.Unfortunately, in their evidence, the claimant's solicitors neglected to provide any information that would have enabled the court to conclude that the letter had been sent by first class post, and thus failed even to get to first base.

Moreover, even if the evidence had been forthcoming, the claim would have hit a brick wall because of the views of the court expressed obiter that when considering the impact of rule 2.8 on the time periods set out in rule 6.7, Saturday, Sunday and bank holidays are excluded from calculations of periods of five days or less and hence, Saturday and Sunday did not exist for the purpose of rule 6.7.

By sending the claim form on the Friday, the deemed day of service was the following Tuesday.No need to trust the postIn Anderton, it was also suggested obiter that the deemed service provisions of rule 6.7 are rebuttable by evidence of the actual date of service.

Accordingly, as was the case in Anderton, if the defendant produced evidence that the letter enclosing the claim form had been received after the second day from the date of posting (the presumed date under rule 6.7(1)), the suggestion was that the actual date replaced the presumed date.

This approach was firmly kicked into touch by the Court of Appeal in Godwin v Swindon Borough Council.

In Godwin, an application of the deemed service provisions had the effect of rendering the claim form as having been served one day too late.

The actual date of service had in fact been one day earlier but this did not save the claimant.

It was held that the deemed date of service took precedence over the actual date of service.

The efficiency or otherwise of the postal service was irrelevant.It's too lateIf four months for service of the claim form have come and gone without the deed having been done, will a frantic search through the CPR prevent the spectre of professional negligence? The escape routes of applications for extensions of time, substituted service and dispensing with service have all been considered by the courts in a recent series of cases.

Any application to extend made outside the four-month period is governed by rule 7.6(3) which provides that the court may make such an order only if:l The court has been unable to serve the claim form; or,l The claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and,l In either case the claimant has acted promptly in making the application.In Kaur v CTP Coil Ltd (2000) LTL 10 July, the Court of Appeal was considering the case of a claim form served four days late and the claimant's solicitors were seeking to argue that the subsequent application to extend satisfied the requirements of rule 7.6(3).

The court focused on whether or not reasonable steps had been taken to serve and were not persuaded that any difficulties there might have been in the preparation of the documents prior to service were in any way relevant.

Whether or not reasonable steps had been taken to serve involved a consideration of the process of service and the attempts to serve.

The failure of solicitors to get their act together was of no interest to the Court of Appeal.

Where all else fails, there is always rule 3.10 which gives the court general power to rectify matters where there has been an error of procedure.

However, this cut no ice with the court which held that the words 'only if' (featured in rule 7.6(3)) effectively forbid the extension of time when the criteria laid down in the rule have not been met.

This decision also echoed the views expressed in Vinos v Marks and Spencer plc (2000) All ER (D) 777.The strict regime governing extensions of time for the claim form does not apply to the late service of the particulars of claim according to the Court of Appeal in Totty v Snowden and Hewitt v Wirral and West Chesire NHS Trust (2001) The Times, 10 August; (2001) LTL 31 July.

It is only the claim form that is governed by the structure of rule 7.6(3).

When it comes to late service of particulars, the court can open up the potential gates of generosity afforded by the general discretionary powers of rules 3.9 and 3.10.Give us a break (part 1)In Elmes v Hygrade Food Products plc [2001] All ER (D) 158 (Jan), service of the claim form was effected on the defendant's insurers.

There was no option but to concede that this did not amount to valid service and any attempt to seek to extend time under rule 7.6(3) was doomed following Kaur and Vinos.

However, rule 6.8 provided a solution, said the claimant.Under rule 6.8, where there was a good reason to authorise service by a method not permitted by the CPR, the court may make an order permitting service by an alternative method.

In this case all that was necessary, argued the claimant, was for the court to invoke this rule and deem the service of the defendant's insurers to be effective service.The 'good reason' under rule 6.8 was that the defendant's insurers were dealing with the claim at the time and would have suffered no prejudice by the way in which the claim was served.

Nice try, thought the Court of Appeal, but no good.

An application under rule 6.8 cannot be applied for retrospectively and that was the end of the story (see also Nanglegan v Royal Free Hampstead NHS Trust [2001] 3 All ER 793).In passing, the court observed that had an application for service on the defendant's insurers been made prior to the anticipated service, it would not have in any event succeeded.

To put the final nail in the coffin, the court observed that while rule 3.10 had not been relied on by the claimant, even if it had it would not have assisted.Give us a break (part 2)Despite the decision of Elmes, Mr Justice Douglas Brown in Infantino v Maclean [2001] 3 All ER 802 QBD showed that there was life yet in the argument.

In this case, the claim form was intended for the Medical Protection Society.

Apparently, because of a computer error, the DX number on the accompanying letter was that of the Medical Defence Union, and once the error was realised, an attempt was made to serve correctly albeit one day late.

At first instance an order was made extending time for service so as to validate the late service.

On appeal it was held that this decision fell foul of the findings made in Kaur and Vinos, and this could not be upheld.

However, said Mr Justice Douglas Brown, no one had really looked at rule 6.9.

This gives the court power to dispense with service.

While the Court of Appeal had held in Elmes that rule 6.8 could not be applied retrospectively, this decision did not explicitly deal also with rule 6.9.

It was true that the Court of Appeal had felt there was no power in the CPR to correct the invalid service in Elmes and in the process was also taking into account rule 6.9.

However, the fact that the decision was confined to rule 6.8 had the effect of rendering any other observations obiter.

Mr Justice Douglas Brown felt that this enabled him to invoke the overriding objective of dealing with cases justly, and to dispense with service under rule 6.9.

Give us a break (part 3)It is worth looking at the individual circumstances of Infantino to see how Mr Justice Douglas Brown justified his decision.

The claimant's solicitors had been impeccable in their observance of the protocol, and indeed had gone beyond its requirements on assisting the defendants in what was a complicated case.

Apart from some further medical evidence, the defendants had already received the substance of the claim and the evidence in support.

Moreover, and this was perhaps most compelling, because of the nature of the error in service, it was not clear whether a claim for professional negligence would stick against the claimant's solicitors.The Infantino decision was considered by Mr Justice Macomb in Anderton who clearly felt uneasy with the approach which had been taken in Infantino.

In his view, the dicta in Elmes would have precluded an application being made retrospectively under rule 6.9.

However, he felt bound to follow Infantino in finding that he did have a discretion to dispense with service.

That being said, he had little difficulty in refusing to exercise that discretion.Practitioners who may well have been tempted to view Infantino as somewhat of a maverick decision were proved right when the Court of Appeal recently looked at rule 6.9 in Godwin (ante) and appear well and truly to have put Infantino to bed by stating that rule 6.9 could not enable the court to dispense with service when that would in substance be doing what was forbidden by rule 7.6(3).

The message appears now to be uncomfortably clear.

Late service will be service that is too late.District Judge Stephen Morley sits at Edmonton County Court