Service of a Claim Form – Tension between the Civil Procedure Rules?

I have previously discussed the importance of bringing a claim for personal injury within the time limits prescribed under Section 11(4) of the Limitation Act 1980. An issue of equal importance is the requirement of serving Court Proceedings on time, particular the claim form in compliance of the Civil Procedure Rules.

A claim can be issued or ‘brought’ in time but if the claim form is not served on the defendant in time, the claimant faces the risk of having their claim struck out.

The Courts continue to hear cases involving issues over service of claims forms.

Master McCloud passing her Judgement in Jones v Chichester Harbour Conservancy & Ors [2017] EWHC 2270 highlighted the issues faced by lawyers in relation to the issue of service. In Jones v Chichester Harbour Conservancy, the issue before the Court was whether or not the service of the claim form was valid. The claimant made a claim for personal injury. Liability was in issue and the form was issued when the claimant turned 18 years of age and prior to the expiry of the limitation period. The claimant had until 1st November 2016 to serve.

The claimant subsequently made an application to extend time for service of the claim form and an Order was made for the claim form to be extended to 17th January 2017. The form was sent by email to the first defendant at 4.27pm on 17th January 2017 and a hard copy was posted by first class post on the same day before midnight. The first defendant did not agree to accept service of the claim form by email and received the hard copy on 18th January 2017. The first defendant subsequently made an application for a Court Order that the service of the claim form was invalid. The second and third defendants made applications in similar terms.

The starting point in relation to service of the claim form is found in Part 7 of the Civil Procedure Rules.

7.5 (1) Where the Claim Form is served within the jurisdiction, 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.

The claimant, or their solicitors, must therefore serve the claim form before midnight within 4 calendar months of the date of issue of the claim form.

6.14 A Claim Form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).

The form is therefore deemed to be served on the second business day after the claimant completes the relevant step under CPR 7.5 i.e. posting, faxing etc.

7.6 (1) The claimant may apply for an order extending the period for compliance with rule 7.5.

The case of Jones v Chichester Harbour Conservancy addressed the tension between the above rules. It was the first defendant’s case that the claimant’s solicitors were required to have taken the step to put the form in the post by Friday, 13th January 2017 to ensure it was deemed served by Tuesday, 17th January 2017. The claimant argued that they were required to complete the step required under rule 7.5, by midnight, on the specified deadline and therefore the claimant was compliant and service of the claim form was in time.

Master McCloud in her judgement found that the claim form was validly served before the expiry when the claimant took the relevant step of placing the form in the post before midnight on 17th January 2017. In her Judgement she stated the following:

“(1) 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 require by rule 7.5 within the time provided for doing so. That would apply equally to cases where time for service has been extended by order (as here) and to cases where the basic 4 or 6 month period of validity applies; and

(2) as to the purpose of the “deemed date” provisions in rule 6.14 those have to be given an interpretation which gives them a meaningful function and in my judgment the deeming provisions 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 acknowledgment of service or defence”

Interpreting the rules

Master McCloud noted that a ‘purposive interpretation’ of the above rules was required. The intention of the amended rules was to ‘introduce the requirement to take the relevant step in rule 7.5 before the expiry of the Claim Form’. This gave claimants and their lawyers clear direction as to what step to take to ensure the form was served in time. Master McCloud in her judgement noted that to burden rule 6.14 and the deemed service provisions on the Claimant when effecting service was not the purpose of the amended rules and created a ‘dead period’ of two business at the end of the validity of the claim form.

It is unlikely that the case of Jones will be the last case to be considered by the Court of Appeal in relation to the service of the claim form.

Recording the deadline for service

It is imperative that solicitors record the deadline for service of the claim form in their case management systems as soon as the form is issued by the Court to ensure they are compliant with the CPR rules. Having said this, it is best practice to serve the claim form as soon as the medical evidence is obtained and in good time before the expiry of the form to avoid any sleepless nights!