A lot of water has passed under the bridge since then: we’ve seen the effect of the Supreme Court’s decision in Abela v Baadarani about retrospectively validating defective service under CPR 6.15, the Court of Appeal’s decisions about relief from sanctions in Mitchell v News Group Newspapers and Denton v T E White Ltd, and the arrival of electronic working in parts of the High Court.
One decision from 2015 highlights the effect of these developments. In United Utilities Group Plc v Hart Judge Graham Wood QC held that the service of a copy of a sealed claim form was a procedural error that could be corrected under CPR 3.10. In his view, given that court orders will soon be served electronically, with electronic versions of the seal or signature, it was anachronistic to persevere with the traditional requirements which belong to a non-digital age. He was also unimpressed with the defendants who had sought to take a procedural advantage by declining to point out the problem to the claimant to enable them to correct it. This was not the kind of cooperation urged by the Court of Appeal in Denton.
Acknowledging service
If a defendant does have grounds to contest jurisdiction for invalid service, the decision has to be made quickly. The following steps must be taken:
- the acknowledgment of service form N9 with box 3 ticked ("I intend to contest jurisdiction") must be filed within 14 days
- an application must be filed within 14 days after filing the acknowledgment under CPR 11(4).
Both of these steps must be taken to avoid waiving the point. If there is any doubt about the validity of service, it is prudent to tick box 3 so as to buy 14 more days to decide whether or not to issue an application.
The scope of CPR 6.15
Before looking at the ways in which service can be defective, it’s important to consider whether the courts’ generous approach to CPR 6.15 could offer the claimant a way out where they have failed to comply with the service rules. CPR 6.15 provides that the court may permit service by an alternative method or an alternative place where there is "good reason" to authorise service by a method or at a place other than the methods expressly permitted under CPR 6 (Kaki v National Private Air Transport Co). The court can order retrospectively that a defective method of service should be allowed to stand as service. The fact that the defendant learned of the existence and content of the claim form is a critical factor but not decisive (Brown v Innovatorone and Dunbar Assets Plc v BCP Premier Ltd). The effect of CPR 6.15 is still not clear but it has been said that it is unlikely that the court will be prepared to use this retrospective power to cure a failure to comply with the CPR (MB Garden Buildings Ltd v Mark Burton Construction Ltd).
Grounds for contesting jurisdiction
So when can you contest jurisdiction on the ground that service within the jurisdiction is defective? This updated checklist should help. Remember that CPR 6.15 could be relevant to many of these scenarios, unlike the power to dispense with service altogether under CPR 6.16 which requires exceptional circumstances.
- Service of a photocopy of the claim form
Given the number of conflicting first instance decisions about the correct approach to this question (including those mentioned above - Cant v Herz Group is another), the fact that the courts are on their way to becoming paperless and the courts’ dislike of technical defences of this kind, service of a copy is now likely to be excused by the court. Failure to serve a response pack is also likely to be an excusable procedural irregularity (Hart Investments Ltd v Fidler and Hannigan v Hannigan). - Service by an inappropriate method
For example, by fax or email without permission (see CPR 6.3). Permission can be given expressly or under the deeming provisions in Practice Direction 6A.4.1(2). Where the parties' solicitors have corresponded and the defendant's solicitor's headed notepaper contains a fax number, express authority under CPR 6.7 to serve the solicitor is still required but it can be done by fax (Brown v Innovatorone Plc). The same cannot be said for service by email where the solicitor (or defendant) must have expressly agreed to accept service by this method (Dunbar Assets v BCP Premier Ltd). These rules appear increasingly out of step with practice and it remains to be seen whether CPR 6.15 will be used to validate unauthorised service by email. - Service is out of time
Check the claim form has been served within four months of being issued. CPR 7.5 provides that “the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form”. So if the claim form was issued on 1 January 2016, it must be despatched in accordance with the table (eg, by first class post, DX or other service which provides for delivery on the next business day) before midnight on 1 May 2016. The deemed service date under CPR 6.14 does not affect the date on which service occurs under CPR 7.5. - Inappropriate extension of time
Where service is out of time but the claimant has obtained an extension of time from the court under CPR 7.6(2), you may wish to contest jurisdiction if there appears to be good reason for the failure to serve the claim form within the four month period (Euro-Asian Oil SA v Abilo (UK) Ltd). The claimant’s failure to pay the application fee may also be relevant (Price v Egbert H Taylor & Co Ltd). - Service upon the wrong person
This occurs where service has been effected on the defendant where the claimant has received notification to serve on the defendant's solicitor under CPR 6.7 or service on the solicitor where no CPR 6.7 notice has been given. The claimant must be notified by the defendant or the defendant’s solicitor that the latter is authorised to accept service. A reference to the solicitor being instructed to act for the defendant is not sufficient (Brown v Innovatorone Plc). The retrospective power under CPR 6.15 could be prayed in aid here (Power v Meloy Whittle Robinson Solicitors) and possibly also where the claimant has served the defendant’s insurers (Elmes v Hygrade Food Products plc). Suing the wrong party or getting the name wrong are not errors that go to the court’s jurisdiction but are matters like limitation which should be raised in the defence. - Service at the wrong address
Service can be challenged on the grounds that the claimant has failed to take reasonable steps to locate the defendant. Where no address is given for service, the defendant’s default address is determined by the table in CPR 6.9. Where the claimant has reason to believe that the defendant no longer resides or carries on business at the default address, has taken reasonable steps to ascertain the defendant's residence or place of business but has been unable to do so, and cannot ascertain an alternative address for service, he may serve on the defendant's usual or last known address in accordance with the CPR 6.9 table. A claimant may be able to rely on CPR 6.15 here, particularly if the claim form has come to the attention of the defendant and there is no limitation issue (Norcross v Georgallides).