Where the claimant issues the claim at the end of the limitation period, serving it correctly within the four month time limit under CPR 7.5 is crucial. Many claims have been lost because of defective service of the claim form – whether, for example, by unauthorised email service as in Barton v Wright Hassall and more recently in Piepenbrock v Associated Newspapers Ltd, or by unauthorised service on the defendant’s solicitor as in Woodward v Phoenix.
The defendant is under no duty to point out the claimant’s mistake in this scenario. The circumstances in which the courts will retrospectively validate defective or non-existent service of a claim form under CPR 6.15 or CPR 6.16 are limited. A failure to read the rules and/or comply with them, even where the claimant is a litigant in person, is not a “good reason” for the court to give relief under CPR 6.15 nor “exceptional circumstances” under CPR 6.16 enabling the court to dispense with service altogether. The recent decision in Ideal Shopping Direct Ltd v Visa Europe Ltd concerning purported service of an unsealed amended claim form illustrates how hard it is for claimants to get relief under these rules.
The rules about serving particulars of claim are not as draconian as those for claim forms. The claimant can apply ahead for an extension of time under CPR 3.1(2)(a) and if they fail to do that, the courts will usually grant relief from sanctions where the delay is short (see Totty v Snowden). But it is embarrassing for a claimant’s solicitor to be responsible for serving particulars late and to then incur the cost of applying for relief from sanctions. And it’s not easy for the defendant either: they have to decide whether or not to oppose the claimant’s application for relief in this scenario.
The rules discussed below apply where the particulars are being served within the jurisdiction in accordance with the CPR service rules and the proceedings are not in the Commercial Court (see CPR 58.5).
What are the rules for service of a claim form and particulars of claim?
Both the claim form and particulars must be served before midnight on the calendar day four months after the date of issue of the claim form under CPR 7.5. However, while the claim form is served by despatching it before midnight on that day using one of the accepted methods eg first class post, delivery, email where authorised etc, the particulars are subject to the service rules set out in CPR 7.4 discussed below.
The relevance of the CPR 7.5 deadline to particulars of claim
Particulars of claim must be served in accordance with CPR 7.4. This states that if they are not contained in or served with the claim form, they must be served within 14 days after service of the claim form. The problem here is that although there appears to be a further 14 days in which to serve the particulars, this is subject to the same longstop as that for service of the claim form in CPR 7.5: they must be served before midnight on the calendar day four months after the date of issue of the claim form.
If the claimant serves the claim form right at the end of the four month period, the particulars need to be served with the claim form if they are not to be out of time. This is because deemed service rules found in CPR 6.26 apply to documents other than claim forms, such as particulars. So, while a claim form despatched by a method in CPR 7.5 before midnight on the last day for service (even if that day is a non-business day) will be served on time, particulars despatched by the same method on the same day could be deemed to be served several days later.
This is often described as a trap for unwary claimants but this description was rejected in Maggistro-Contenta v O'Shea. CPR 7.4(2) is not by design a trap – it is a rule with a clear purpose about which the claimants' advisers are expected to be wary.
Service deadline brain teaser
Let’s look at the position over the forthcoming Christmas holiday. Imagine this scenario. The claim form was issued on 24 August. The last day for service of the claim form under CPR 7.5 is Thursday 24 December. The claim form is despatched on Wednesday 23 December by first class post. The particulars are not quite ready that day and are sent by first class post on Thursday, Christmas Eve.
Question: Are both the claim form and the particulars served in time?
Answer: No. The claim form has been despatched in accordance with CPR 7.5 and has therefore been served within the four month time limit.
The particulars, on the other hand, are not protected by the despatch rule in CPR 7.5. Because of the weekend and the Boxing Day bank holiday on Monday 28 December, they are deemed to be served on Tuesday 29 December, five days after the four month deadline. This is the effect of the deemed service rule in CPR 6.26 for service by first class post: the deemed date is the second day after posting, provided that day is a business day, or if not, the next business day after that day.
Is the court likely to grant relief if the claimant falls into this trap?
The claimant’s solicitors were caught out by the CPR 7.5 deadline in Venulum Property Investments Ltd v Space Architecture Ltd (2013). At that date, the strict approach taken to applications for relief from sanctions by the Court of Appeal in Mitchell v News Group meant that the judge refused to grant relief.
This is no longer the case. The Court of Appeal in Denton v TH White Ltd tempered the Mitchell approach to such applications, with the result that a delay of a few days is rarely going to be held to be serious. (Note, however, that a short delay can be serious where the applicant for relief has breached an unless order – see, for example, Diriye v Bojaj where a two day delay in serving a Reply was held to be serious.)
Where the claimant falls into the trap and waits for the full additional 14 days or more before serving particulars, as in Maggistro-Contenta v O'Shea, relief may not be forthcoming. See Gordon Exall’s blogpost for details of other cases where applications for relief were made for late service of particulars.
Admit your mistake and apply for relief immediately
There are circumstances in which a court might decide to refuse a claimant relief for a short delay in serving particulars of claim. The decision in Lakhani v Mahmud is a salutary lesson for any solicitor or litigant who is tempted to argue too long and too hard about whether they have missed a deadline. It also illustrates the perils of the Christmas season.
Directions were given for updated costs budgets to be served 21 days before the costs and case management conference on 10 January 2017. The claimant served theirs on the correct date, 19 December 2016, but the defendant served their budget one day late on 20 December.
Instead of acknowledging the failure to meet the deadline and applying immediately for relief from sanctions, the defendant’s solicitor argued the point about the calculation of time over the Christmas period all the way to the CCMC, refusing to make an application until the eleventh hour and turning a 45 minute hearing into a half day. The judge refused to give relief and his decision was upheld on appeal.
What should defendants do in this situation?
The danger for defendants is to seek to score a tactical advantage out of an irrelevant delay where there are no other factors weighing against the claimant. As explained above, the contrast here between the claim form and particulars is important. Taking a technical point on service of a claim form is legitimate. The same conduct could be seen as unacceptable tactical game playing in the context of late service of particulars.
Viridor Waste v Veolia is a warning for defendants who find themselves in this situation. The context was unusual – Viridor’s large claim and Veolia’s equally large cross claim were both made at the end of the limitation period – but the lessons to be drawn apply to all defendants. Viridor filed its particulars with the court two days ahead of an agreed 14 January 2015 deadline but then served them in error by second class post. (Second class post doesn’t fall within the deemed service rules in CPR 6.26 but first class “signed for” post does count as first class post – Diriye v Bojaj).
Veolia opposed Viridor’s application for relief. The judge awarded Viridor indemnity costs, on the ground that Veolia had sought to take “opportunistic and unreasonable advantage of Viridor’s mistake in the hope of obtaining a windfall strike-out when it was obvious that an extension of time was appropriate”.
For further guidance, see our briefing A practical guide to relief from sanctions.