The rules regulating the correct method, time and place to serve a claim form are draconian. If they are not followed strictly then even the most meritorious claim will usually be struck out. This outcome is such a big prize for the defendant, and such a disaster for the claimant, that the amount of satellite litigation it generates is no surprise.

Some of the questions surrounding the rules for service of the claim form were again before the Court of Appeal in 6 cases in November 2005, and last week judgments in 5 of those cases were published. The judgments are in Nutifafa Kuenyehia & Ors. v. International Hospitals Group Ltd [2006] EWCA Civ 21, and Collier v Williams & 3 other appeals [2006] EWCA Civ 20.

A number of points came up in these appeals. They are essential for any litigator to know. The four judgments collected in Collier et al. surround applications for extension of time for service. First however I deal with Kuenyehia. The Claimant's solicitors asked the Defendants' solicitors whether they had instructions to accept service of the claim form. Come the last day for service, the Defendants' solicitors had not replied. The Claimants sent the Defendants' solicitors the claim form by courier, and to be on the safe side, also faxed it to the Defendants' legal department (without the Defendants having agreed to service by fax). That was held not to be good service.

The Claimants promptly applied for an order that they had effected good service. Clearly they had not stuck to the letter of the rules. The Court of Appeal has repeatedly been unbending – Claimants must stick to the letter of the rules, and a mistake which would be minor in the 'real world,' as well as in many of the formalities of litigation, is fatal when it concerns service of the claim form. (The leading cases are Godwin –v- Swindon Borough Council [2002] 1 WLR 997, and Anderton –v- Clwyd County Council [2002] 3 All ER 813).

The Claimant in Kuenyehia alternatively asked for an extension of time for service (which would have allowed them try to serve the form again). Again there is really no flexibility in the rules. In an application for extension of time before the deadline the court has a general discretion to extend time (under CPR 7.6(2)), but after the deadline the court has no discretion, unless the Claimant has taken all reasonable steps to serve the form (CPR 7.6(3)). If there was any reasonable step to serve which the Claimant had left undone, that would be fatal to an application to extend time made after the deadline. In the Kuenyehia the Claimant's solicitors could have couriered the claim form the relatively short distance to the Defendants' office instead of faxing it, and chose not too –or they could have started trying to serve a few days earlier and used the post, but chose not to.

The Claimant in Kuenyehia also, as a third alternative, asked the court to dispense with service. Both the Master, and the Judge on first appeal, thought that under the circumstances the Claimant had acted reasonably, and with an eye on the justice of case, and the lack of prejudice to the defendant, made an order dispensing with service. Most solicitors would probably think that was fair. The Court of Appeal, however, disagreed. They let the sword of Damocles fall. The Court of Appeal has so often stated the rules for service of the claim form must be followed strictly, and they applied that principle again here. An order dispensing with service will be granted only in an exceptional case. A 'minor' mistake by a solicitor does not make an exceptional case.

The Court of Appeal has often said that the kind of slip solicitors make all the time is no excuse. The rules on service of the claim form will be applied ruthlessly in the interests of certainty, simplicity, and clarity. A busy solicitor might wonder whether the Court of Appeal, unrealistically, expects every law firm to run like a well-oiled machine. However, the view of the Court of Appeal is that you've got four months from issue date to serve. Why leave it to the last minute before you start trying to serve proceedings? If the rules committee added another two weeks to the deadline, firms all over the country would still leave it until the last minute. That is a bad habit which solicitors could change.

The appeal in Collier, which is the first of the four cases in the judgement I have abbreviated as Collier et al., also arose from the question of whether service on the defendants' solicitors was effective. Again in Collier the Defendants' solicitors had failed to state that they had instructions to accept service of the claim form. But here's the difference in Collier, and it is one easily overlooked: the Defendants themselves (not through their solicitors) had given their solicitors' address as the address for service. Service was valid. The Defendants were an insurance company. When their solicitors got the claim form, they thought, and said, that service was not valid because they had not stated they had instructions to accept service. However, the fact is that there nothing in the rules which says that service of a claim form on the solicitor is valid only where the solicitor say they have instructions to accept service. Although it is not as clearly spelled out as it might be in the rules in their current form, the condition for serving a claim form is not that solicitor says they have the relevant instructions to accept service; the condition is that the Defendant has nominated their solicitors as the address for service. Here is an example of why a nitpicking knowledge of these rules is important. Having made this mistake about what precisely the rules say, a mistake I suspect a lot of solicitors would have made, the Defendant's solicitors challenged the validity of the service in a strike-out application. The district judge applied the letter of the rules, and held that the service was valid. The Court of Appeal (hearing the first appeal which had been transferred up) upheld the district judge. Incidentally, Counsel had advanced an argument that a rule in CPR 6.4(2) which refers to the solicitor notifying the party serving the document that he is authorised to accept service. However, that rule is a rule limiting the right to effect personal service where there is a solicitor with instructions to accept service. The rule is relevant only to the right to use personal service, and the argument never had a very strong chance of success.

Meaning of 'last known residence'

The next point emerging from the Collier et al. judgment (in Marshall & Rankin v. Maggs) is on the meaning of the phrase 'last known residence' in CPR 6.5 as the place where the claim form can be served. The claimants had met the defendants at a certain residential address. The reality was the defendants had never lived there. 'Last known residence' is to be taken literally, said the Court of Appeal. The Defendant must have actually lived at an address at some point for it ever to be the 'last known residence.' It is not good enough that the Claimant assumed the Defendant lived there. One has some sympathy for the Claimants here. The Defendants had made changes of solicitor and had proved elusive. The Claimants simply did not have an address for service. It seems unfair but the Court of Appeal refused relief. Underlying the decision is the same old refrain: the Claimants have got four months, they should have been working on the problem of the address for service earlier. If they had really been on the job and done whatever they reasonably could to get the correct address in good time, and had still not been able to find the right address, they would have stood a good chance of the court dispensing with service. However, waking up at the last minute to the fact that the Defendants have just changed solicitors again, and that you do not have the Defendants' address, is not a good enough basis to persuade the court to dispense with service.

Revisiting the application for strike-out (or any application which finally disposes of a case) before the same court which has decided it once

The other cases reported in the judgment in Collier et al. are on a very important point where County Courts have been going wrong, as well as solicitors. They both relate to applications involving disputes about whether service is valid or whether valid service is still possible. Their implications are wider, because the principle applies to applications of any kind where the decision could finally dispose of the case. The court can decide applications on paper if the parties agree, or if the court does not think a hearing is needed (CPR 23.8). There seems to have been a practice where a party fails in a strike-out application on paper, for County Courts to allow the parties to go back to the same judge and apply again, this time asking for a hearing. The Court of Appeal has now made it clear that this is impossible, the judge (or another judge at the same level) has no jurisdiction to consider the application again. Of course a respondent to an order made ex parte can apply to the same judge to set it aside. However, the same judge or same level of judge does not have jurisdiction to reconsider the same question where both parties have had an opportunity to make representations to the court.

There is a very general rule in CPR 3.1(7) that 'a power of the court under these Rules to make an order includes a power to vary or revoke the order.' The Court of Appeal has now stated that this rule does not override the general rule that the same court cannot reopen its decision. The judgment quotes and approves a passage from Patten J in Lloyds Investment (Scandinavia) Limited v Christen Ager-Hanssen [2003] EWHC 1740 (Ch), from which the following sentence summarises the position (referring to the High Court but in Collier et al. applied in County Court cases):
Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him.
(For the full quotation see paragraph 39 of Collier).

The Court of Appeal are here discussing only strike-out applications. The passage quoted above which they approve in this context is from an application to set aside default judgement. The Court of Appeal do not say expressly that the principle applies to the decision of any application which could finally dispose of the case. They would perhaps not want to name a category of types of applications whose boundaries could be litigated. However, their decision is clearly underpinned by a distinction, mentioned in the words of Patten J which they quote, between a judge reconsidering a procedural, case management question (which, within certain limits, is unobjectionable) and reconsidering a decision on whether the case should proceed at all.

Given this position, the Court of Appeal state that is good practice for strike-out applications to be heard orally. However, where an application fails, subject to these special circumstances where CPR 3.7(1) applies, the correct route is an appeal. The same court should not reconsider the matter, whether because someone decides, following a decision on paper, that after all that a hearing would have been a good idea; or (as in one of the cases decided in Collier et al.) where the judge realises that the court has overlooked something relevant.

Summary

These points are hugely important for the day to day practice of every litigator, and that is why I have discussed them, although they may seem dry. First, where you dislike a decision made on paper in an application which could finally dispose of a case, or where the judge has made an error in deciding such an application (even an error which in retrospect is obviously an error), the practice of writing to the court or applying again in order to get the same judge (or a judge of the same level) to reconsider the question is absolutely wrong. It is possible to do this under CPR 3.7 – roughly speaking – only where there is some material change in circumstances or in evidence. Second, don’t leave trying to serve the claim form till the last minute! Just don't do it, ever, for any reason. The first lesson in litigation on the LPC should be that it is good practice for the whole profession always to serve at least a couple of weeks before the deadline. The profession would avoid a lot of worry and heartache if it would accept and adopt the maxim that best practice is to service not later than 3 and half months from issue. Unforeseen problems over service of proceedings do and will happen. The unfortunate solicitor to whom they happen will get no relief (at any rate in Court of Appeal), if they have left service till the last minute, when there is no time left to cope with the unforeseen.

Dr John Birchall - Professional English, Legal English, and Common Law Training