In Jones v Chichester Harbour Conservancy the High Court considered the "unfortunate tension" between Civil Procedure Rules (CPR) 6.14 and 7.5 regarding effective service of a claim. The judgment provides a helpful analysis of the purpose of CPR 6.14 in circumstances where there is uncertainty surrounding the validity of service of a claim form.
CPR 6.14 provides that a claim form served within the United Kingdom is deemed served on the second business day after completion of the relevant step under CPR 7.5(1). The date of deemed service of a document is critical in determining the subsequent timetabling steps in the case.
CPR 7.5 details the methods for dispatching a claim form and the steps in relation to those particular methods that must be taken. Those steps must be taken before midnight on the calendar day four months after the issue of the claim form.
The deadline for service of the claimant's claim form was November 1 2016. On October 18 2016 the claimant was granted an extension for service of her claim until January 17 2017. The claim form was emailed to the first defendant at 4:27pm on January 17 2017 and posted by first-class post that same day. The hard copy was received by the first defendant on January 18 2017. The first defendant had not indicated a willingness to accept service by email.
The defendants asked the court to determine that the claimant's claim form was invalid in that it was served out of time and that the court therefore lacked jurisdiction to hear the claim. The defendants argued that in order to comply with the extended deadline for service of the claim form on January 17 2017, the steps required under CPR 7.5 should have been taken on or before midnight on January 13 2017, on the basis that the deemed date of service provisions of CPR 6.14 would be the second business day after completion of the relevant step (ie, the January 17 2017 deadline). In this instance, as the defendants had not indicated that they would accept service by email, the relevant step that was required by CPR 7.5 was "Posting, leaving with, delivering to or collection by the relevant service provider" for postal or DX service.
The claimant did not contend that email delivery constituted service for the purpose of CPR 7.5, but relied on postal service of her claim form. The defendants' position was alleged to be "based on a fundamental misunderstanding [of] what a claimant must do to serve a claim form within the period of its validity". It was the claimant's case that she must have completed the step required by CPR 7.5 by midnight on January 17 2017, which she did as she had posted the claim form by this time. It was alleged that the only relevance of the 'deemed' date of service rules in CPR 6.14(1) was for such matters as calculating the time for taking subsequent steps, such as the service of an acknowledgement of service.
The court held that the claim had been validly served. Valid service was determined by whether the claimant had completed the steps required by CPR 7.5 within the relevant time limit. In this case, the claim form was posted by first-class post on January 17 2017 prior to midnight, and therefore the relevant step had been completed within the relevant time period. According to the court:
"The correct approach when determining whether, for the purpose of answering the question 'was the claim form served during its period of validity?' is to ascertain whether the Claimant has carried out the step required by rule 7.5 within the time provided for doing so. That would apply equally to cases where the time for service has been extended by order (as here) and to cases where the basic 4 or 6 month period of validity applies."
The court further held that the purpose of the 'deemed date' provisions in CPR 6.14 was to:
"operate as a means to ensure that it is clear to the parties what date is to be used for the purpose of calculating such things as the date for service of acknowledgement of service or defence."
In this way, CPR 7.5 was said to serve as a mechanism intended to assist claimants to avoid the trap of being out of time, while CPR 6.14 assisted defendants by taking a fair approach to the starting point for calculating the length of time that they have to respond to a claim.
The court held that to adopt the literal approach favoured by the defendants would create a "dead" period of a day or two at the end of the period of the validity of the claim form. During such a period, the claim form could not be validly served by any of the methods detailed in CPR 6.14 which had deemed dates of service after its expiry, even if the claimant were to have carried out the step mandated by CPR 7.5 during the validity of the claim. A purposive interpretation of the rules was therefore required, which took into account the fact that CPR 7.5 was amended in 2008 precisely so that claimants knew which relevant step to take in CPR 7.5 before expiry of the claim form.
In reaching this decision, the court considered the prior decision in Brightside Group Ltd v RSM UK Audit LLP ([2017] EWHC 6 (Comm)), which held that compliance with a CPR 7.7 notice requiring claimants to serve or discontinue proceedings by a certain date had to be tested by reference to CPR 6.14 and not by when the claimants had complied with CPR 7.5. The proposition that CPR 6.14 served only to fix the date for subsequent timetabling deadlines was rejected.
In this this case, however, Brightside was said to be of limited value as it concerned CPR 7.7 and any reference to wider questions of the valid service of claim forms in Brightside was obiter. The master did note that in any event, if she were wrong in her interpretation of Brightside, she disagreed with the findings to the extent that they meant that the deemed service provisions could render invalid the service of a claim form served by taking the relevant step in CPR 7.5 within its validity period.
The judgment is of use to practitioners in its examination of the uneasy interplay between CPR 6.14 and CPR 7.5 and its explanation as to the relevant test for whether a claim form is served during its period of validity. The analysis provides welcome clarification for claimants in a litigious landscape where procedural issues with claim forms are becoming increasingly common.
However, given the differing approaches that the High Court has adopted when considering this issue in the past, claimants and their legal advisers should be mindful to ensure that the deemed date of service provisions detailed in CPR 6.14 are taken into account to allow for deemed service to take place and mitigate any risk of litigating the validity of their claim form.
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For further information on this topic please contact Andy McGregor or Elizabeth Wiggin at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
