Another fine mess – Mitchell, CPR 3.10 and the service rules

In In tegral Petroleum SA v SCC-Finanz AG late service of particulars of claim to an email address not authorised for service was treated as valid under CPR 3.10 for the purpose of starting time running for the service of a defence. This appears to bypass the effect of Mitchell v News Group Newspapers in one easy step and therefore demands close scrutiny. We look at the role of CPR 3.10 post- Mitchell .

In Integral Petroleum SA v SCC-Finanz AG late service of particulars of claim to an email address not authorised for service was treated as valid under CPR 3.10 for the purpose of starting time running for the service of a defence. This appears to bypass the effect of Mitchell v News Group Newspapers in one easy step and therefore demands close scrutiny. We look at the role of CPR 3.10 post-Mitchell.

CPR 3.10

In the aftermath of Mitchell and its harsh approach to failures to comply with court deadlines, this rule looks like a relic of a gentler age. It reads:

“Where there has been an error of procedure such as a failure to comply with a rule or practice direction
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.”

Defective service

In Steele v Mooney the claimant had applied for an extension of time for service of the particulars of claim when he intended to refer to the claim form. This drafting error was held to be an error of procedure which could be remedied under CPR 3.10.

The Court of Appeal said that CPR 3.10 cannot be used to achieve something prohibited under another rule. It could not therefore be used to validate late service of a claim form where this would have the effect of side-stepping CPR 7.6(3) which imposes strict limits on the circumstances in which an extension of time for service can be granted after the expiry of the service period.

Procedural error in Integral Petroleum

Service of the particulars of claim was defective because they were sent five days late to the defendant’s French lawyer’s email address, despite the fact that this had not been given in the acknowledgment of service and had not been authorised for service under Practice Direction 6A paragraph 4.

Popplewell J held that the service by email was an error of procedure that could be remedied under CPR 3.10. This meant that time for the service of the defence began to run on the deemed date of service of the email and the defendant was not entitled as of right to have the judgment in default entered against it set aside under CPR 13.2. An unjustified benefit would be conferred on a defendant who could rely upon a technical defect that has had no practical effect and cause no prejudice. The judge concluded that this reasoning applied with even greater force to the applicability of CPR 3.10 to the five day delay.

The judge was influenced in his decision by the fact that the defendant’s lawyer had corresponded with the claimant’s solicitors about service of the particulars of claim from the same email address. He rejected the argument that any defect in the method of service is outside CPR 3.10.

He noted that the House of Lords’ decision in Phillips v Symes establishes that CPR 3.10 can be used beneficially wherever the defect has had no prejudicial effect on the other party but drew a distinction between service of particulars and service of the claim form, endorsing a narrower approach to CPR 3.10 in the case of the latter.

Mitchell and late service of particulars of claim

Mitchell applies a two-stage test to a failure to comply with a rule or order. Relief from sanctions may be given under CPR 3.9 if the default was trivial or if there was good reason for it. Prejudice is no longer referred to in CPR 3.9 and there are conflicting views about its continuing relevance in the many cases to apply Mitchell in recent months.

An application for a retrospective extension of time for service of particulars of claim, even though no sanction is provided for default, was described in Mitchell as “in substance” an application for relief from sanctions. There have been several cases applying this approach to these applications.

A recent example is Associated Electrical Industries Ltd v Alstom UK. Andrew Smith J accepted the Court of Appeal’s criticism of the approach he had taken to relief from sanctions where particulars of claim were served two days late in his earlier decision in Rayaan Al Iraq Co Ltd v Trans Victory Marine Inc.

He considered striking out the claim form to be a disproportionate response to the claimant’s 20 day delay in serving particulars, given that no prejudice was caused by the delay, it did not aggravate costs nor did it have a significant impact on the courts’ resources. However, he concluded that he was bound by Mitchell to refuse an extension and to strike out the claim “in order to encourage procedural discipline”.

Mitchell and CPR 3.10

The application of CPR 3.10 to defective service in Integral Petroleum appears to cut directly across Mitchell and the decision must be open to question for its failure to discuss Mitchell in that context – it is mentioned, but only with reference to the defendant’s 12 week delay in applying to set aside judgment in default. (Notwithstanding the delay, the judge still set aside the judgment because of the claimant’s failings and the merits of the defence.)

The role of CPR 3.10 clearly needs redefining following Mitchell but we can be sure that the Court of Appeal will not allow it to undermine the new robust approach to procedural hygiene.

Service by email

On a practical note, how should parties now approach unauthorised service by email? It will often be the case that there has been correspondence by email before service. In such circumstances, Integral Petroleum suggests that a defendant would be wasting its time, and may risk being penalised in costs, if it takes a point on unauthorised service of particulars by email. Whether a defendant is on firm ground contesting unauthorised service of a claim form by email may also be open to question, depending on the circumstances.

Alternative service under CPR 6.15

The Supreme Court’s decision last year in Abela v Baadarani endorsing a generous approach to retrospective orders for alternative service under CPR 6.15 is potentially relevant to defective service where there is no prejudice to the defendant. Lord Clarke said “the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR 6.15(2). On the other hand, the wording of the rule shows that it is a critical factor.”

CPR 6.15 was redrafted in order to enable retrospective validation of defective service. It has the effect of reversing the decision in Elmes v Hygrade Food Products Plc where the claimant had faxed the claim form to the defendant’s insurers, who were dealing with the claim, on the last date for service. The Court of Appeal would have liked to validate the defective service, which had caused no prejudice and would result in a windfall for the defendant’s insurers, but concluded that they were unable to do so because CPR 6.8 (the predecessor to CPR 6.15) could not be applied retrospectively to approve alternative service on the defendant’s insurers. It’s not clear what the court’s approach would be to this scenario in the current climate.

Just at the point where Mitchell should have introduced certainty when it comes to breaches of the rules, the position regarding service of claim forms and particulars of claim has become more confused. Those advising defendants could justifiably feel that they are damned if they do and damned if they don’t when it comes to deciding whether to take a point on defective service. Further guidance from the Court of Appeal is needed.

You can read the full judgment here.

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