B e f o r e :
LORD PHILLIPS OF WORTH MATRAVERS, MR
LORD JUSTICE MUMMERY
and
LADY JUSTICE HALE
____________________
Between:
| | RHIANNAN ANDERTON
| Appellant
|
| |
- and -
|
|
| |
CLWYD COUNTY COUNCIL
|
Respondent
|
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Tel No: 020 7421 4040, Fax No: 020 7831 8838
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____________________
MR NICHOLAS BOWEN (instructed by Teacher Stern Selby for the Appellant)
MR EDWARD BISHOP (instructed by Berrymans Lace Mawer for the Respondent)
And four other appeals whose names appear on the following pages
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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B1/2002/0299/0299B
FROM MANCHESTER COUNTY COURT
HIS HONOUR JUDGE HOLMAN
BRYANT
AND
MIKE BEER TRANSPORT
MR SIMON MONTY (instructed by Lyons Wilson for the Appellant)
MR ADRIAN PALMER QC (instructed by Hugh James Ford Simey for the Respondent)
B1/2001/2700
FROM BRENTFORD COUNTY COURT
HIS HONOUR MARCUS EDWARDS
THE HOME OFFICE
and
JOHN DORGAN
MISS CHRISTINA MICHALOS (instructed by the Treasury Solicitor for the Appellant)
MR BARRY COULTER (instructed by JR Jones for the Respondent)
B1/2002/0591
FROM THE CARDIFF COUNTY COURT
DISTRICT JUDGE D WYN REES
TINA WENDY CHAMBERS
and
SOUTHERN DOMESTIC ELECTRICAL SERVICES LIMITED
MR NICHOLAS VINEALL (instructed by Robertsons for the Appellant)
MR ADRIAN PALMER QC (instructed by Hugh James Ford Simey for the Respondent)
A2/2001/2047
FROM THE QUEEN’S BENCH DIVISION
THE HON MR JUSTICE GRAY
Master Murray
GREGORY CUMMINS
And
SHELL INTERNATIONAL MANNING SERVICES
MR JOHN ROSS QC and MR JULIAN WATERS (instructed by Dawson & Co for the Appellant)
MR TIMOTHY YOUNG QC and MR EDWIN BUCKETT (instructed by Hill Taylor Dickinson for the Respondent)
Lord Justice Mummery :
This is the judgment of the court.
A. Introduction
The Five Appeals
- The five appeals all concern the construction and application of provisions in Part 6 (Service of Documents) and Part 7 (How to Start Proceedings-The Claim Form) of the Civil Procedure Rules (CPR) relating to the service of a claim form. Four of the appeals (Anderton, Bryant, Chambers and Dorgan) were heard together. They are about the effect of the provisions in rule 6.7 for the calculation of the “deemed day of service” of a claim form sent by first class post or by fax and the scope of the discretion under rule 6.9 to dispense with service of the claim form in the light of (a) the recent decision of this court in Godwin v. Swindon Borough Council [2001] 4 All ER 641 (Pill and May LJJ and Rimer J) (‘Godwin’); and (b) section 3 of the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights. The fifth appeal (Cummins) was heard separately, following immediately on the first four appeals. It is about the discretion to grant permission to serve a claim form out of the jurisdiction within the period of 6 months allowed for service by rule 7.5(3).
Non-compliance with Rules for Service: Warnings
- The consequences of failure to comply with the rules governing service of a claim form are extremely serious for a claimant and for his legal advisers. The situation becomes fraught with procedural perils when a claimant or his solicitor leaves the service of a claim form, which has been issued just before the end of the relevant statutory limitation period, until the last day or two of the period of 4 months allowed for service by rule 7.5(2) or, even worse, almost to the end of an extension of time granted by the court. If the claim form is then served by first class post, by fax or in another manner permitted by the CPR there is high risk, demonstrated by Godwin and by the cases under appeal, of a successful application by the defendant to strike out the claim on the ground of non-compliance with the rules and of the cause of action then being statute barred. The risks never need to be run: they can easily be avoided by progressing the proceedings in accordance with the spirit and letter of the CPR. Now that the disputed interpretations of the CPR have been resolved by Godwin and by this judgment, there will be very few (if any) acceptable excuses for future failures to observe the rules for service of a claim form. The courts will be entitled to adopt a strict approach, even though the consequences may sometimes appear to be harsh in individual cases.
- Later in this judgment we explain our conclusions on the contested points of interpretation, and we state the facts and outcomes of the individual cases under appeal. In summary the legal position is that:-
(a) service of a claim form, which has been sent by first class post or fax before the end of the period for service, may, as a result of “deemed service” under rule 6.7, occur after the end of that period;
(b) the fact that the claim form has actually been received by, and come to the attention of, the defendant or his solicitor through the post, by fax or by means other than personal service within the period of 4 months allowed by rule 7.5(2) is legally irrelevant to ascertaining the day of service, as deemed by rule 6.7;
(c) if an application for an extension of time is issued by the claimant after the end of the period of service, the court will rarely have power under rule 7.6(3) to grant an extension of time and only in the most exceptional circumstances will it be proper to exercise its discretion under rule 6.9 to dispense with service;
(d) the limitation period applicable to the cause of action may by then have run out, so that the claimant cannot issue and serve fresh proceedings against the defendant; and
(e) the claimant may have suffered substantial economic loss in consequence of the claim becoming statute barred, for which the only possible remedy left, years after the original cause of action arose, is proceedings for professional negligence against his legal adviser. That claim may be contested. Even more substantial costs are bound to be incurred on both sides. If fought, the case will inevitably take even longer to come to trial.
B. The Relevant Provisions of the Civil Procedure Rules
Time for service of a claim form
- Under rule 7.5(1) and (2) the general rule is that, after a claim form has been issued, it must be served on the defendant within 4 months after the date of issue.
- Where the claim form is to be served out of the jurisdiction the period for service is 6 months: rule 7.5(3). Special provisions about service of the claim form out of the jurisdiction and the circumstances in which the permission of the court is or is not required are set out in Section III of Part 6 (rules 6.17 to 6.31).
Extension of time for serving a claim form
- Under rule 7.6 the claimant may apply for an order extending the period within which the claim form may be served. The general rule is that an application to extend the time for service must be made within the period for serving the claim form specified by rule 7.5 or, where an order has been made under rule 7.6, within the extended period for service specified by that order.
- Only in restricted circumstances can the court grant an extension of time for service on an application made after the end of the specified period: rule 7.6(3). On such an application, which must be supported by evidence, the court may make:
“….such an order only if-
the court has been unable to serve the claim form; or
(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and,
(c) in either case, the claimant has acted promptly in making the application.”
Methods of Service
- Under rule 6.2 a document may be served by any of the specified methods including, as well as personal service in accordance with rule 6.4, first class post and fax. Under rule 6.8 the court may make an order permitting service by an alternative method where it appears to the court that there is a good reason to authorise service by a method not permitted by the rules. (Such an order may be made prospectively, but not retrospectively: Elmes v. Hygrade Food Products PLC [2001] EWCA Civ 121).
Deemed Service
- Rule 6.7(1) tabulates in two columns the method of calculating the day of service. In the right hand column there is the “Deemed day of service”, which is attached to the corresponding “Method of service” in the left hand column. Five methods of service are covered. The provisions apply to a document served in accordance with the rules or any relevant practice direction. The two methods of service relevant to the appeals are first class post and fax.
- In the case of first class post the deemed day of service of a document is the second day after it was posted.
- In the case of fax the deemed day of service differs according to whether it is transmitted on a “business day before 4 p.m.”, in which case the deemed day of service is on that day, and in any other case, in which case the deemed day of service is on “the business day” after the day on which it is transmitted.
- Rule 6.7(2) provides that
“ If a document is served personally-
(a) after 5 p.m., on a business day; or
(b) at any time on a Saturday, Sunday or a Bank Holiday,
it will be treated as being served on the next business day.”
- (In rule 6.7(3) “business day” in this rule is defined as meaning any day except Saturday, Sunday or a bank holiday; and “bank holiday” includes Christmas Day and Good Friday).
Calculation of Period of Time
- Rule 2.8 in Part 2 (Application and Interpretation of the Rules) is about the calculation of any period of time for doing any act which is specified by the rules or by a practice direction or by a judgment or order of the court. Under rule 2.8(4) where the specified period is 5 days or less and includes a Saturday or Sunday or a Bank Holiday, Christmas Day or Good Friday, that day does not count.
- In the rules, as originally drafted, rule 2.8 was not mentioned at all in rule 6.7. As a result of amendments (made by rule 4(4) of the Civil Procedure Amendment Rules 2000 SI 2000 No 221), it is now expressly mentioned in rule 6.7 in the following manner, immediately preceding the table-
“(1) A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table (Rule 2.8 excludes a Saturday, Sunday, a Bank Holiday, Christmas Day or Good Friday from calculations of periods of 5 days or less).”
Service of Documents Generally
- It is provided by rule 6.1 that the rules in Part 6 apply to the service of documents, except where
“(a) any other enactment, a rule in another Part, or a practice direction makes a different provision; or
(b) the court orders otherwise.”
Power of Court to Dispense with Service
- The court may, on an application without notice, make an order dispensing with service of a document: rule 6.9. No criteria are specified in the rule for the exercise of discretion.
C. Godwin
- Godwin, in which three judgments were handed down on 10 October 2001, is an important decision on the resolution of the “deemed service” appeals. Its facts neatly disclose the disputed interpretations of the CPR and demonstrate the dire practical consequences for unfortunate litigants. Subject to the provisions of the Human Rights Act 1998, which were not mentioned in any of the judgments, the ratio of Godwin is binding on this court.
- The claimant in Godwin suffered a back injury on 26 February 1997. His claim form was issued on 17 February 2000, shortly before the end of the statutory three year limitation period. Under rule 7.5 (2) the claim form was required to be served within 4 months. The court extended the time for service of the claim form until 8 September 2000. On Thursday 7 September 2000 the claimant sent the claim form and the particulars of claim to the defendant, who was his employer, by first class post. The documents were in fact received in the post by, and came to the attention of, the defendant on the next day, Friday 8 September 2000. That was the last day for service. The claimant contended that he had served the claim form in time. The defendant successfully persuaded the Court of Appeal that there was no valid service, as the effect of rule 6.7(1) was that there was “deemed service” of the claim form on Monday 11 September. That was three days after the last day for service. The court held that no extension of time for service of the claim form could be granted under rule 7.6 (3) and no order dispensing with service could be made under rule 6.9. The result was that Mr Godwin’s claim was struck out. No fresh claim form could be validly issued by him against his employer, as the cause of action was by then statute barred.
- The Court, in allowing an appeal by the defendant, concluded that-
(a) the deemed day of service of a document derived from the table in rule 6.7(1) was not rebuttable by evidence proving that the claim form had actually been received by the defendant on a different day; and
(b) the court could not dispense with service under rule 6.1(b) or rule 6.9, where such a dispensation would constitute a retrospective extension of time for service specifically forbidden by rule 7.6 (3).
Deeming Point under rule 6.7
- In order to grapple with the many points debated at the hearing of these appeals it is necessary to examine the judgments in Godwin more closely. May LJ gave the leading judgment. Pill LJ concurred, though with some misgivings about the adoption of the legal fiction in rule 6.7. Rimer J reached the same conclusion by a rather different route. May LJ said (paragraph 46 at p.656d) that rule 6.7(1) clearly meant that:
“….for each of the five methods of service, the day to be derived from the second column is to be treated as the day on which the document is served. It is a fiction in the sense that you do not look to the day on which the document actually arrived, be it earlier or later than the date to be derived from the table. Thus in the present case, the claim form and other documents were posted a day late and the fact that they arrived earlier than the deemed day of service is no more help to the claimant than it would be help to the defendant if they had arrived later.”
- In rejecting the submission that the deemed day of service was rebuttable by evidence of earlier actual receipt of the claim form, May LJ explained (paragraph 46 at p.656f) that his construction did not offend the overriding objective of the CPR:
“Granted that the purpose of service is to bring the document to the attention of the person to be served, these are all methods of service other than personal service which are not bound to put the document literally in the hands of the person to be served on any particular day. All these methods of service will not achieve this unless the person to be served is there to receive the document or takes steps to do so by, for example, going to the document exchange or checking the e-mail…Uncertainties in the postal system and considerations of this kind make it sensible that there should be a date of service which is certain and not subject to challenge on grounds of uncertain and potentially contentious fact. It seems to me that parties serving documents by these means are in a better position if the deemed date for service is certain than if it is open to challenge on factual grounds. This particularly applies to claimants wanting to serve a claim form at the very end of the period available to do so. The deemed day of service is finite and they will not be caught by a limitation defence where the last day for service is a Friday, if they post the claim form by first class post on the preceding Wednesday whenever it in fact arrives.”
- May LJ added (paragraph 48 at p.657c-g) that this interpretation of rule 6.7(1) accorded with the general structure of the relevant rules. He observed that many of the documents to which the rule applies will be served by the court; that the practical working of the timetables by the court depends on secure dates, which are not liable to be challenged by evidence of when documents actually arrive; that potentially variable dates for service of documents are likely to give rise to disputes assuming greater apparent importance than they deserve; that for the large majority of stipulated time periods the court has power, except where the rules otherwise provide, to grant discretionary extensions of time under rule 3.1(2); and that a claimant serving a claim form is not disadvantaged by a deemed day of service which is irrebuttable by evidence.
Dispensing with Service Point: rule 7.6(3) and rule 6.9
- May LJ concluded that Mr Godwin could not be extricated from the consequences of late service of his claim form, where limitation was critical, by the use of the rule governing extensions of time for service of a claim form or by the rule governing dispensing with service. He explained (paragraph 50 at p.658f) that a person who has mistakenly failed to serve the claim form within the period permitted by rule 7.5(2) in substance needs an extension of time to serve it. Rule 7.6(3) expressly restricts the power of the court to grant an extension. On the facts of Godwin an extension of time was not available to the claimant. The power to dispense with service of a document under rule 6.1(b) and rule 6.9 did not enable the court to order what was in substance an extension of time for service of a claim form, which was forbidden by rule 7.6(3). Pill LJ agreed with May LJ.
D. The Issues
Deemed Service
- Is the deemed day of service of the claim form under rule 6.7 rebuttable by evidence of actual receipt of the claim form by the defendant? In our judgment, it is not. The reasoning in Godwin applies. The position is unaffected by the Human Rights Act and Article 6 of the Convention.
- The ratio of Godwin was that the deemed day of service was irrebuttable by evidence. There was, however, no consideration of the impact of section 3 of the Human Rights Act 1998 and Article 6 of the Convention on the construction of rule 6.7. This is no doubt explicable by the fact that the proceedings in Godwin were commenced before the Human Rights Act came into force on 2 October 2000. All the relevant events concerning the posting, receipt and deemed day of service of the claim form happened in September 2000.
- In the case of a deeming provision it is important to identify and take account of its purpose. In IRC v. Metrolands Ltd [1981] 1 WLR 636 at 646G-H, Nourse J reviewed the leading authorities, including East End Dwellings Co. Ltd v. Finsbury Borough Council [1952] AC 109 at 132-133, and summarised their effect-
“When considering the extent to which a deeming provision should be applied, the court is entitled and bound to ascertain for what purposes and between what persons the fiction is to be resorted to. It will not always be clear what those purposes are. If the application of the provision would lead to an unjust, anomalous or absurd result, then, unless its application would clearly be within the purposes of the fiction, it should not be applied. If, on the other hand, its application would not lead to any such result then, unless that would clearly be outside the purposes of the fiction, it should be applied.”
- On the deeming point Mr Vineall, appearing for the claimant in Chambers, made such clear and concise submissions that they were sensibly adopted without repetition or elaboration by counsel arguing against deemed service in the other three appeals. Mr Vineall accepted that, in the context of Part 6 of the CPR, certainty as to the date of service of a claim form is important, as marking both the end of a period of time and the beginning of a forward time-table. He submitted that the purpose of the deemed day of service under rule 6.7 is to protect the claimant from “attention uncertainty” by preventing the defendant from seeking to prove that the claim form has not come to his attention within the time for service, either because he has not received the claim form at all or because he has received it late. It is, however, no part of that protective purpose to prevent the claimant from contradicting the fiction of deemed service by giving evidence to prove the fact that the claim form was actually received by, and came to the attention of, the defendant prior to the deemed day of service. The effect of the construction of rule 6.7 in Godwin produces, he argued, an absurd and potentially unjust situation, in which a defendant has not been validly served until a day or more after the day on which he admits to having received and seen the claim form. This result cannot have been intended by the draftsmen of the CPR, which refer to a glossary of expressions used in the rules (G1.1 on p. 1905 of Vol 1 of Civil Procedure Spring 2002: see also rule 2.2(1)) including a description of “Service” as
“Steps required by rules of court to bring documents used in court proceedings to a person’s attention.”
- Mr Vineall submitted that the admission of uncontradicted evidence of receipt of a document to rebut the “deemed day” of service would not detract from the legitimate aim of promoting procedural certainty. He cited section 7 of the Interpretation Act 1978 as an example of the deeming technique, which is used to achieve certainty in the service of documents, but at the same time allows the deemed service of a document to be rebutted by proof to the contrary. It provides that
“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
- As Mr Vineall pointed out, Pill LJ observed in Godwin ... paragraph 72 at p.664d) that the word “deemed”, as a matter of construction, is capable of meaning “presumed until the contrary is proved”: International Bottling Co Ltd v. Collector of Customs [1995] 2 NZLR 579 at 584. It is submitted that it is possible to construe rule 6.7, so as to allow the admission of uncontroversial evidence of actual receipt of the claim form by the defendant before the “deemed day” of service, consistently with the evident protective purpose of the provision. If, as was recognised in Godwin, it is possible to read and give effect to rule 6.7 in two different ways on the question of the rebuttability of the deemed day of service, this court is bound by section 3 of the Human Rights Act to adopt the interpretation which is compatible with Article 6 of the Convention. The court is also bound by section 6 of the Act not to act in a way that is incompatible with the Convention right.
- Mr Vineall contended that the construction adopted in Godwin is incompatible with Article 6 of the Convention, that it was reached per incuriam and that it should not be followed by this court. By preventing proof of the fact that the defendant received the claim form before the end of the period for service and before a “deemed day” of service, which occurred after the end of the period, the claimant asserting a civil right is precluded from access to the court and the very essence of his right is impaired. It is accepted that the right of access to the courts is not absolute and that it may be subject to implied limitations: Golder v. United Kingdom (1975) 1 EHRR 524 at 537, paragraph 38. Thus, procedural rules setting time limits that cannot be waived or extended and laying down timetables for the conduct of litigation can, and often will, be lawful limitations on the Article 6 right imposed in pursuit of the legitimate aim of the good administration of justice. The limitations are allowed by the margin of appreciation afforded to States in regulating the right of access to a court, provided, however, that the limitations (a) do not restrict or reduce the access in such a way or to such an extent that the very essence of the right is impaired; (b) pursue a legitimate aim; and (c) represent a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Stubbings v. United Kingdom (1996) 23 E.H.H.R. 213 at 233, paragraphs 48 and 52; Ashingdane v. United Kingdom (1985) 7 EHRR 528 at 546, paragraph 57. Subject, however, to those safeguards of the Article 6 right, it is no part of the function of the Strasbourg Court to substitute for the assessment of national authorities any other assessment of what might be the best policy in this field.
- Particular reliance was placed by Mr Vineall on the recent decision of the Strasbourg Court in the case of Miragall Escalano v. Spain ... 25 January 2000) at paragraphs 37 and 38, in which the Court concluded that the domestic court’s
“….particularly strict interpretation of a procedural rule deprived the applicants of the right of access to the courts to have their claims for compensation examined.”
- The case concerned the unreasonable construction of the domestic law procedural provisions as to the date from which time ran for the purpose of bringing an application for judicial review and so as to prevent a claim for against the administrative authorities for compensation from being examined on its merits. The applicants lodged their claim against the administrative authorities 1 year and 2 days after delivery of judgment by the Supreme Court in proceedings to which they were not parties. The Supreme Court, which examined the applicants’ claims as a court of first and last instance, held that the limitation period of 1 year ran not, as the applicants contended, from the date of the publication of the Court’s judgment in the Official Gazette, but from a date 4 months earlier when the judgment was delivered. The Strasbourg Court held that the applicants could not be said to have acted negligently or to have erred in lodging their administrative law claims within 1 year and 2 days of the date of delivery of the judgment of the Supreme Court.
- It was argued before us that, although the provisions as to the “deemed day” of service have the legitimate aim of achieving procedural certainty, the Godwin interpretation is unreasonably strict: it is disproportionate; it causes fiction to reign over fact; and it deprives the claimant of his Article 6 right to have his claim determined by the court on its merits. A procedural rule designed to protect claimants by bringing certainty to postal and other permissible methods of non-personal service available to them, has been erected into an insurmountable barrier for the claimant: service on a day, which is out of time, is inflexibly and fictitiously imposed on claimants when the undisputed fact is that the claim form was received by the defendant in time.
- So, it is said, the decision in Godwin operates against the claimants and for the benefit of the defendants: it prevents a claimant, if he wishes to do so, from waiving his right to rely on the “deemed day” of service and from relying on the day of actual service. That is not a legitimate aim. Its consequences for the claimant are unjust and disproportionate. Allowing the deemed day of service to be rebutted would not prejudice the defendant, who has in fact received the claim form before the end of the period: he is in the same position whether the claim form was posted by first class post on the day before or two days before.
- Despite the eloquence of the arguments we are not persuaded that the decision of this court in Godwin is incompatible with Article 6. We are therefore bound to follow it. The aim of rule 6.7 is to achieve procedural certainty in the interests of both the claimant and of the defendant. Certainty in the time of service of a claim form is an important requirement for the efficient performance of the case management functions of the court. It is legitimate to promote that aim by setting a deadline of 4 months from issue for the service of the claim form by one of the permitted methods and by using the legal technique of deemed service to bolster the certainty. The rules employ a carefully and clearly defined concept of the “service” of a document, which focuses on the stated consequences of the sending of the document by the claimant, rather than on evidence of the time of its actual receipt by the defendant. The objective is to minimise the unnecessary uncertainties, expense and delays in satellite litigation involving factual disputes and statutory discretions on purely procedural points. The requirement for service of the claim form within 4 months of issue, the range of permissible methods of service available at the option of the claimant and the days of service or deemed service specified for the different methods of service do not impair the very essence of the claimant’s right of access to the court to enforce his civil rights. Under the Limitation Act and the CPR the claimant has full access to the court for the enforcement of his civil rights for a period, in the case of personal injury claims, of 3 years and 4 months (plus any further extension granted by the court). If the claimants in these cases are debarred from access to the court, it is not in consequence of a system of disproportionately strict procedural rules, which violate the fundamental right of access to the courts: it is as a result of the claimant, or of the claimant’s legal adviser, waiting until almost the end of the generous period allowed for issuing and for serving the claim form, and then choosing at that last moment to use a method of service, such as postal service, without regard to the provision of the rules as to when service will be deemed to be effected if this method is used. The arguments appealing to proportionality, to justice and to the CPR’s overriding objective of enabling the court to deal with cases justly lend no support to the case against an irrebuttable deemed day of service. Procedural rules are necessary to achieve justice. Justice and proportionality require that there are firm procedural rules which should be observed, not that general rules should be construed to create exceptions and excuses whenever those, who could easily have complied with the rules, have slipped up and mistakenly failed to do so.
Calculation of deemed service
- Are Saturday and Sunday excluded from the calculation of the day of deemed service? In our judgment, they are not excluded. Neither rule 2.8 nor the bracketed summary of its effect inserted in rule 6.7 produces that result.
- It is submitted on behalf of the defendants that the later amendment of the rules by the insertion in rule 6.7 of the reference to rule 2.8 must have been intended either to clarify and highlight the existing effect of rule 2.8 or to achieve a new effect on the calculation of the day of deemed service. The intention must have been that Saturdays and Sundays should be excluded from the calculation of the day of deemed service, thereby reinforcing the objectives of certainty and consistency. It is sensible that service by first class post should only be deemed to occur on a day on which there is in fact postal delivery (i.e. a “business day”), thereby facilitating immediate legal assistance for the defendant.
- The claimants’ response is that the insertion of an incomplete summary of the text of rule 2.8 is only informal and parenthetical: it is intended to be by way of a helpful cross reference, reminding the reader of the existence and effect of the rule. This technique is used in other parts of the CPR in circumstances falling short of express incorporation and substantive effect. So, rule 6.7 is not thereby expressly subjected to rule 2.8 when, as a matter of the construction of the rules as a whole, it does not otherwise apply. The language of rule 2.8 is quite simply not apt to cover or control rule 6.7. Rule 2.8 relates to the time for the doing of an act. Rule 6.7 does not relate to the doing of an act at all: it is a deeming provision identifying the days, on which events are deemed to happen as the result of the doing of the act of service of the claim form under other rules e.g. under rule 6.2 and rule 7.5. So, Saturdays and Sundays and Bank Holidays are not excluded from the calculation of the day of deemed service by first class post under rule 6.7.
- It was pointed out that, if the draftsman of the rules and of the amendments to them had intended to exclude Saturday and Sunday from the calculation of the day of deemed service by first class post, an obvious and more apposite way of achieving the exclusion was not to invoke rule 2.8 nor to insert a parenthetical summary of it into rule 6.7, but to make deft use of the available expression “business day”, as defined and used within the same rule; for example, in relation to the deemed day of service of the claim form by fax.
- On this point we conclude that Saturday and Sunday are not excluded from the calculation of the deemed day of service. There are obiter passages to the contrary effect in the judgments in Godwin (May LJ at paragraph 47 on p.657c), Pill LJ (at paragraph 73 on p.664f-g) and Rimer J (at paragraph 59 on p.660h-j). May LJ said that McCombe J in Anderton (one of the other cases under appeal) was “obviously correct to hold that r.2.8 applies to the periods in r.6.7 for the reasons he gave.” While commenting that “the drafting is somewhat difficult to unravel”, McCombe J concluded that the question was not resolved by the use of the defined expression “business day” in 6.7 and that
“… the clear intention behind the reference to Rule 2.8 in Rule 6.7(1) is to indicate that Saturdays and Sundays etc. should be similarly excluded from calculations of all kinds of deemed service, save those where express provision is otherwise made.” (Transcript 25 July 2001 at paragraph 29).
- The point did not, however, need to be decided in Godwin, because deemed service on the Saturday in that case would in any event have been outside the period for service of the claim form. We disagree with the obiter statements on this point in Godwin and, more recently, in Consignia v Sealy [2002] EWCA Civ 878, at [29].
- The court has had the benefit of fuller argument on the point than in Godwin and we conclude that, on the natural and ordinary meaning of the language of rule 6.7, Saturday and Sunday are not excluded from the calculation of the day of deemed service by first class post. Rule 2.8 does not in terms apply whenever there is a reference in the CPR to the calculation of a period of time of 5 days or less. It is in restricted terms. It only applies to the calculation of any period of time “for doing any act” which is specified by the CPR, by a practice direction or by a court order. Rule 6.7 does not specify a period of time for doing any act under the CPR. It sets out the methods of calculating the days on which the event of service is deemed to happen as a result of doing acts under other rules involving the use of the various available methods for service of a claim form. Service of a claim form is an act done under rules other than rule 6.7.
- The fact that the express mention of rule 2.8 is by way of a seemingly informal cross reference in brackets is beside the point. What matters is the language of rule 2.8, whether in or out of brackets, and whether it is apt to apply to rule 6.7. In our judgment, the language of rule 2.8 is not applicable to rule 6.7, even if it had been the wish of the draftsman that it should apply. If it had been intended to exclude Saturdays and Sundays from the calculation of the deemed day of service by first class post, the draftsman would probably have used and, if he wanted to make the position clear, he ought to have used, the specially defined expression “business day” to be found in and used in other parts of rule 6.7. As it is, the word “day”, not the defined expression “business day”, is used in the part of the table in rule 6.7 dealing with service by first class post. Saturday is a “day” and so is Sunday. The fact that there is, or may be, no postal delivery to the defendant or to his legal adviser on either of those days or that there may be no-one at the premises of the defendant or of his legal adviser to deal with documents that are delivered on those days is legally irrelevant to the operation of the fiction of deemed service. The deemed consequences inexorably follow from the method of service of the claim form selected by the claimant: they are not dependent on the particular circumstances of the defendant to whom the claim form has been posted.
- We are aware that this construction of rule 6.7 appears to produce a surprising mismatch of the different times of deemed service of a claim form: if a claim form is sent by first class post at 5.15 p.m. on Friday, it is deemed to be served on Sunday; but, if it is faxed at 5.15 p.m. on Friday, it is deemed to be served on Monday; and if it is served personally at 5.15 p.m. on Friday, it is treated as being served on Monday. It is a matter for consideration whether rule 6.7 should be amended. Surprising results are not uncommon, however, when a court obediently observes a legislative direction to leave behind the facts of the real world and to move into a fictional legal world, as deemed to exist by enactment. It is not argued that s.3 and s.6 of the Human Rights Act require or entitle the court to reach a different construction.
Power to Extend Time for Service
- It is not contended that the court has power in any of the cases under appeal to extend the time for service of the claim form, but the reasons for this situation need to be stated as an introduction to the important arguments on the ambit of the power to dispense with service under rule 6.9, which is invoked.
- In Vinos v. Marks & Spencer [2001] 3 All ER 784, which was decided before the Human Rights Act came into force, the Court of Appeal decided that the general power of the court in rule 3.1 to extend the time for compliance with any rule “Except where these Rules provide otherwise” does not extend to enable the court to do what is expressly forbidden by rule 7.6(3). May LJ, with whom Peter Gibson LJ agreed, foreshadowed what he later said in Godwin when he concluded ( in paragraph 20 at p.789h-790e)-
“ The meaning of r.7.6(3) is plain. The court has power to extend the time for serving the claim form after the period for its service has run out “only if” the stipulated conditions are fulfilled. That means that the court does not have power to do so otherwise…... Interpretation to achieve the overriding objective does not enable the court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored….. There is nothing unjust in a system which says that, if you leave issuing proceedings to the last moment and then do not comply with this particular requirement and do not satisfy the conditions in r.7.6(3), your claim is lost and a new claim will be statute barred. ”
- After the end of hearing oral argument our attention was drawn to the judgments in the very recently reported case of Totty v. Snowden [2002] 1 WLR 1384, which was decided after the conclusion of argument in Godwin, but before the judgments in Godwin were handed down. Kay LJ said (in paragraph 31 at p.1393B)-
“ Those responsible for drafting the rules were singling out the claim form for exceptional treatment.”
- The Court of Appeal held that the “exceptionally strict provision” in rule 7.6(3) applicable to service of the claim form did not extend to service of the particulars of claim, which are not an integral part of the claim form and are subject to a discretionary power in Part 3 to extend the time for service. The rationale for the distinction in the treatment of the claim form and the particulars of claim was explained by Kay LJ (in paragraph 37 on p.1394E) and concurred in by Chadwick LJ (in paragraph 46) and by Peter Gibson LJ (in paragraph 48):
“Until the claim form is served, the defendant may be wholly unaware of the proceedings. He may, therefore, because of his ignorance be deprived of the opportunity to take any steps to advance the case. The same would not be true if the claim form had been served but the particulars of claim were outstanding. In such circumstances it would be open to a defendant either to seek an order for immediate delivery of the particulars of claim, or, if it was justified, to seek to strike out the claim. Thus a very strict regime in relation to the claim form and a discretionary regime subject to the overriding objective is a perfectly sensible approach to the differing problems raised by the two types of failure to comply with the rules as to service.”
Dispensing with service
- Is there power under rule 6.9 to dispense with service of the claim form? In our judgment, there is a power to do so retrospectively as well as prospectively, but it is only exercisable retrospectively in exceptional circumstances.
- It is submitted on behalf of the claimants that under rule 6.9 the court has a broad discretion to dispense with service which can and should be exercised where the claim form has in fact been received by, and come to the attention of, the defendant or his legal advisers within the 4 month period, even though service of the claim form is deemed by rule 6.7 to have occurred on a day after that period has expired. They argue that there could be no better ground for dispensing with service of the claim form than that it has become unnecessary to serve it in order to bring it to the attention of the defendant.
- The decision of Douglas Brown J in Infantino v. McClean [2001] 3 All ER 802 was cited by the claimants for the proposition that rule 6.9 gave the court power to dispense with service of a claim form, if that were necessary to give effect to the overriding objective of the CPR to deal justly with a case and to enable the court to achieve a just result. It was held that to strike out the claim in that case would be “an affront to justice”: the solicitors for the claimant had behaved impeccably; it was doubtful whether any claim for professional negligence would succeed against them, even though they had left service until the last day; and the claim form was received only one day late as a result of inserting the wrong DX number due to a computer error.
- The decision in Infantino was, however, disapproved in Godwin (see May LJ in paragraph 50). Godwin is relied on for the contrary argument that the claimants, who have failed to serve the claim form in time, are in need of, and are in reality seeking, an extension of time for service to extricate themselves from the consequences of late service. Such applications are governed by rule 7.6(3). As already explained, in the circumstances of these cases no extension of time could be granted. It was argued that an order dispensing with service should not be granted, if it is in fact for the purpose of treating late ineffective service of the claim form as effective service. Rule 7.6(3) is a complete procedural code for an extension of time for service of the claim form after the end of the 4 month period. The discretionary power to dispense with service under rule 6.9 should not be used as a means of circumventing and rendering nugatory the statutory limitation provisions and to do what is forbidden by the clear provisions of rule 7.6(3). The court should only dispense with service where there is a possibility of effective service, which is capable of being dispensed with. There is no possibility of effective service where, as is the case in some of the appeals, the time for service of the claim form has already expired.
- It was also pointed out that the rules in Part 6 apply to the service of documents, except where a rule in another Part of the CPR makes “different provision.” Rule 7.6 makes different provision. The power to dispense with service cannot properly be used to validate late service of a claim form where no extension of time is available under rule 7.6(3). It is also submitted that rule 7.5(2) makes “different provision” in that it is mandatory. It requires that a claim form, which has been issued, “must” be served on the defendant. So it must prevail in all cases and there is no power to dispense with service of the claim form.
- On this point we conclude that the rule 6.9 is sufficiently widely worded to entitle the court to dispense retrospectively with service of the claim form in an appropriate case. (cf. the obiter view of Simon Brown LJ in Elmes v Hygrade Food Products PLC in paragraph 8 above). The vast majority of applications, in which it will be appropriate to make an order to dispense with service, will be for prospective orders sought and granted before the end of the period for service. As a general rule applications made for retrospective orders to dispense with service will be caught by the reasoning in Godwin. There may, however, be exceptional cases in which it is appropriate to dispense with service without undermining the principle in Godwin that rule 6.9 should not be used to circumvent the restrictions on granting extensions of time for service as laid down in rule 7.6(3) and thereby validate late service of the claim form.
- In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin, between two different kinds of case.
- First, an application by a claimant, who has not even attempted to serve a claim form in time by one of the methods permitted by rule 6.2, for an order retrospectively dispensing with service under rule 6.9. The claimant still needs to serve the claim form in order to comply with the rules and to bring it to the attention of the defendant. That case is clearly caught by Godwin as an attempt to circumvent the limitations in rule 7.6(3) on the grant of extensions of time for service of the claim form.
- Second, an application by a claimant, who has in fact already made an ineffective attempt in time to serve a claim form by one of the methods allowed by rule 6.2, for an order dispensing with service of the claim form. The ground of the application is that the defendant does not dispute that he or his legal adviser has in fact received, and had his attention drawn to, the claim form by a permitted method of service within the period of 4 months, or an extension thereof. In the circumstances of the second case the claimant does not need to serve the claim form on the defendant in order to bring it to his attention, but he has failed to comply with the rules for service of the claim form. His case is not that he needs to obtain permission to serve the defendant out of time in accordance with the rules, but rather that he should be excused altogether from the need to prove service of the claim form in accordance with the rules. The basis of his application to dispense with service is that there is no point in requiring him go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant accepts that he has received the claim form before the end of the period for service of the claim form. Apart from losing the opportunity to take advantage of the point that service was not in time in accordance with the rules, the defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document, which has already come into his hands before the end of the period for service. The claimant, on the other hand, will be prejudiced by the refusal of an order dispensing with service as, if he is still required to serve the claim form, he will be unable to do so because he cannot obtain an extension of time for service under rule 7.6(3).
- In the exercise of the dispensing discretion it may also be legitimate to take into account other relevant circumstances, such as the explanation for late service, whether any criticism could be made of the claimant or his advisers in their conduct of the proceedings and any possible prejudice to the defendant on dispensing with service of the claim form.
E. The Individual Appeals in the Deemed Service Cases
I. Bryant
- On 27 July 1998 Mr Andrew Bryant was injured in a road traffic accident while driving his car near Otford in Kent. On 9 August 2000 liability was agreed 65% / 35% in favour of Mr Bryant. On 18 July 2001 a claim form was issued in the Manchester County Court just before the expiration of the limitation period. The defendants were Mr Stephen Pech, the driver of a heavy goods vehicle involved in the accident, and his employers, Mike Beer Transport Limited. There were 4 months in which to effect service of the claim form on them. The period would expire on Sunday 18 November 2001. On Thursday 15 November 2001 the claim form was sent by Mr Bryant’s solicitors by first class post and recorded delivery. It was actually received by the defendants’ solicitors at 11 a.m. on Friday 16 November 2001. They contended that service was deemed to have been effected out of time and applied to strike out the claim.
- On 10 January 2002 HHJ Holman in the Manchester County Court struck out the claim on the basis that it had not been served in time: the day of service deemed by the CPR was Monday 19 November 2001. He held that Saturday and Sunday were excluded from the calculation of the deemed day of service by first class post under rule 6.7, read in conjunction with parenthetical reference to rule 2.8. He applied the ruling in Godwin, by which he was bound, that the deemed day for service is not rebuttable by evidence of prior actual receipt of the claim form. He declined to dispense with service under rule 6.9. He granted permission to appeal.
- Permission was granted to amend the grounds of appeal to include additional arguments advanced in the cases of Anderton and Chambers on the rebuttability of deemed service in the light of the Human Rights Act and Article 6 of the Convention and the power to dispense with service of the claim form.
- Applying the rulings above on the construction of rule 6.7 to these facts we reject the arguments on the rebuttability point, but allow the appeal on the ground that the deemed day of service of the claim form was Saturday 17 November 2001 and that that was valid service within the period of 4 months allowed by rule 7.5(2). In those circumstances it is unnecessary to consider whether this is a case in which it would be appropriate to exercise the discretion to dispense with service under rule 6.9.
II. Chambers
- On 25 February 1998 Mr Chambers was fatally injured in a road traffic accident. Mr Chambers, who was riding a motor cycle, was involved in a collision with a van driven by Mr Austin Emery, an employee of the defendant, Southern Domestic Electrical Services Limited. He left a widow, Mrs Tina Chambers, and three children. Following the conviction of the defendant’s employee in the Magistrates’ Court, liability for negligence was admitted. Experts’ reports on the quantum of damages were exchanged. A claim form was issued under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 on 15 February 2001, shortly before the limitation period was due to expire. There was a meeting between the experts. A joint statement was prepared. On the claimant’s estimate the claim is worth £477,963.
- On 14 June 2001 DJ Wyn Rees extended the time for service of the claim form to 13 July 2001. On Thursday 12 July 2001 the claim form was sent by first class post to the defendant’s solicitors. It actually arrived on the following day, Friday 13 July 2001, being the last day for service.
- By his order dated 30 January 2002 DJ Wyn Rees struck out the claim, as the form had not been validly served within the prescribed period and the court had no jurisdiction to entertain the claim. The hearing had taken place on 11 October 2001. Almost immediately after the hearing the District Judge became aware of the decision in Godwin. He invited further submissions, which were made in writing. In a careful reserved judgment dated 21 January 2002 he held that under rule 6.7 the claim form was deemed to be served on Monday 16 July, the second day after posting, as the intervening Saturday and Sunday were excluded by rule 2.8. He applied the ruling in Godwin that the date of deemed service is not rebuttable by evidence of actual service at an earlier date. He refused to make an order under rule 6.9 to dispense with service, observing that the decision in Infantino relied on by the claimant was not followed in Godwin. Permission to appeal was granted by HHJ Graham Jones on 7 March 2002.
- In the light of the above rulings on construction we conclude that, although the appeal fails on the rebuttability of deemed service point and is not saved by including Saturday 14 July 2001 as a deemed day of service, the appeal succeeds on the rule 6.9 point. We consider that this is an appropriate case for an order dispensing with service of the claim form, as it can fairly be regarded as an exceptional case. The facts speak for themselves. It is agreed that the claim form was in fact received by, and had come to the attention of, the defendant’s solicitors before the end of the 4 month period for service. There has never been any dispute on that point. By that time the defendant had admitted liability (it was admitted as early as January 2000); negotiations on quantum had started; the defendant was aware of the issues on quantum; attempts had been made to settle the claim; and the defendant had made an offer to settle the claim for £400,000. If the discretion is not exercised the prejudice to the claimant would be very serious. If the discretion is exercised, the only prejudice to the defendant is one contemplated by the power to dispense with service i.e. depriving it of the potential point that service of a claim form, which it has already received in time, in respect of a cause of action, on which it has already admitted liability, was deemed to occur one day late on Saturday 14 July 2001.
III. Anderton
- This case already has a long litigation history. On 5 July 2000, just before the expiration of the limitation period on 6 July 2000, a claim form was issued by Ms Rhiannon Anderton (who was born on 7 July 1979) seeking damages against Clwyd County Council (the Council). The claim is for the alleged negligence of teachers employed by the Council at primary schools attended by her between 1983 and 1990 in failing to identify her learning difficulties. On 27 July 2000 the House of Lords gave judgment relating to pre-action disclosure in respect of Ms Anderton’s proceedings: see [2000] 3 WLR 776. An order for disclosure was made. Extensions of time were agreed for service of the documents and for the service of the particulars of claim, but not for the service of the claim form. The period of 4 months for service of the claim form expired on Sunday 5 November 2000.
- It is first necessary to deal with two short factual points on the service of the claim form arising from the judgment of McCombe J handed down on 25 July 2001, against which permission to appeal is sought by Ms Anderton on the rule 6.7 point and the rule 6.9 point and permission to cross appeal is sought by the Council. McCombe J inferred that the claim form was posted on Friday 3 November 2000, but it was only received on by the Council’s solicitors on Tuesday 7 November. The defendant Council seeks permission to cross appeal on the date of posting, contending that the claim form actually received on the Tuesday was not posted until Monday 6 November, after the expiry of the period for service.
- The other factual dispute is whether the claim form was sent by first class post. There was no evidence before the judge whether the claim form was sent by first or second class post. He said that he could not infer that the claim form was sent by first class post. On that view rule 6.7 did not apply at all, the claim form was not served in accordance with the rules and the appeal to him from the Master would fail on that ground alone.
- There is, however, an application dated 9 April 2002 seeking permission to rely on fresh evidence in a witness statement of Ms Laura Berman that all letters sent by the solicitors for the claimant are automatically sent as a matter of routine procedure by franked first class post. The application, which was opposed by the defendant Council on the ground that the evidence could have been obtained with reasonable diligence for use at the hearing below, was granted. It appears that the Council had not even taken the first class post point in argument at the hearing. If it had, the claimant would then have had an opportunity to make representations on it and to seek to serve further evidence, if required. In the light of the further evidence this court has no difficulty in finding that (a) the judge was entitled to find that the claim form was posted on Friday 3 November (permission to cross appeal on that point is accordingly refused); and (b) the proper inference in all the circumstances is that it was sent by first class post (Ms Anderton’s appeal on that point is accordingly allowed).
- There remain the points of interpretation of rule 6.7 and rule 6.9 arising on the application for permission to appeal against the decision of the judge, dismissing an appeal from an order of Master Ungley dated 12 April 2001 and holding that, on the application of rule 2.8 and rule 6.7, that the claim form was deemed to have been served on Tuesday 7 November 2000 and that that was out of time. Permission to appeal to a second tier was granted in view of the important points of principle and practice raised in this and the related appeals. Permission was also given to amend the Notice of Appeal to include grounds based on sections 3 and 6 of the Human Rights Act and Article 6 of the Convention.
- On the deemed service point the judge held that (a) the deemed day of service was rebuttable by evidence (in this case to show that the claim form was not received until Tuesday 7 November, after the expiration of the period of 4 months on Sunday 5 November); and that (b) deemed service could not occur on Sunday 5 November, which would have been just in time under the rules, because the clear intention behind the reference to rule 2.8 in rule 6.7(1) was to indicate that Saturday and Sunday should be excluded from calculations of all kinds of deemed service, save where express provision was otherwise made. The result was that the deemed day of service and the day of receipt of the claim form were both Tuesday 7 November, which was out of time. As already indicated, the judge’s view on (a) was not approved by the Court of Appeal in Godwin, but his view on (b) was approved in Godwin.
- The judge also held, having referred to Infantino, that the court had a general power to dispense with service under rule 6.9 (a ruling which is challenged in the Council’s respondent’s notice in the light of Godwin), but went on to decide that it was not fair, just or reasonable on the facts of the case to dispense with service. He said that the claim was very old indeed; that the claim form had been issued on the very edge of the limitation period; that the solicitors were well aware of both the time limit for service and that no extension had been agreed; that there was no evidence that the Council was acquainted with the details of the claim to be made; and that the claimant had not adduced evidence that the defendants had suffered no prejudice.
- It was submitted on behalf of the claimant that the facts were very similar to those in Infantino and that his refusal to dispense with service was based on a failure to appreciate the reasons for the passage of time in proceeding with a claim of that kind. The Council submitted that, if, which it disputed, the judge had a power to dispense with service of the claim form, this court should not interfere with the judge’s exercise of his discretion, as it could not be said that it was plainly wrong.
- In view of the earlier rulings on construction we allow this appeal on the short ground that, as the claim form was sent by first class post on Friday 3 November, the deemed day of service is Sunday 5 November. That was in time, being on the last day for service. We also allow the appeal to the extent that the judge was wrong in holding that the claim form was not sent by first class post on Friday 3 November 2000.
IV. Dorgan
- Mr Dorgan alleges that, while he was an inmate in Wormwood Scrubs Prison, he was assaulted by prison officers on 14 April 1995. The claim was investigated by the Home Office in May 1995, shortly after it was brought to its notice. He issued proceedings against the Home Office on 11 April 2000, just before the expiration of the limitation period. The claim form was not served. The period of 4 months for the service of the claim form expired on 11 August 2001 (a Saturday).
- At 4.02 p.m. on Friday 10 August 2001 the claim form and the particulars of claim were sent by fax by the claimant’s solicitor. The receipt of the fax by the defendant’s solicitor was recorded as commencing at 4.03 p.m. The defendant’s solicitors, read it and made a telephone call about it to the claimant’s solicitors soon after. They contended that the fax was not deemed to be served until the next business day, Monday 13 August 2001, after the expiration of the 4 month period for service.
- On 11 October 2001 HHJ Marcus Edwards QC sitting in the Brentford County Court held that he had no power to make an order for an extension of time under rule 7.6(3), but, following the decision of Douglas Brown J in Infantino, he granted an application under rule 6.9 dispensing with service of the claim form. The judgments in Godwin were handed down after the oral argument before the judge had concluded, so that he did not have the benefit of them. He granted the defendant permission to appeal. This court granted permission to amend the respondent’s notice to rely on the Human Rights Act and the Convention.
- We reject the submission of Mr Coulter, who appeared for Mr Dorgan, that the methods of service contained in rule 6.2 or as permitted by the court under rule 6.8 are not exhaustive and that service of the claim form by one of the specified methods of service in Part 6 does not have to be proved by the claimant in a case where, as here, there is no dispute that the claim form has been received by, and come to the attention of, the defendant’s solicitor. He submitted that fiction should not be allowed to prevail over fact, leading to an injustice under rules, which had as their overriding objective that of “enabling the court to deal with cases justly.”
- He emphasised that under rule 6.2 a document “may” be served by any of the specified methods and that the rule did not provide that a document “shall” be served by one of those methods. They are not the only methods of serving documents. What mattered was that the recipient of the document was put in the position of ascertaining the contents of the document or that it was reasonably likely that he would be enabled to do so within a relevant time period.
- It is clear to us that rule 6.2 does provide an exhaustive list of the methods of service unless the court permits an alternative under rule 6.8. The word ‘may’ is used only to indicate that the person serving the document may choose between them. Mr Coulter’s submissions confuse the legal concept of the “service” of documents, as defined by the CPR, with the fact of receipt and the purpose of requiring documents to be served. It is true that the claim form was brought to the attention of the defendant’s solicitors within the period of 4 months, as the fax was received on the Friday and its receipt was admitted, but the rules clearly provide that a fax sent after 4 p.m. is not deemed to have been “served” until the next “business day”, in this case the following Monday, which is after the expiry of the 4 month period. For the reasons given earlier, it is not open to Mr Dorgan to adduce evidence of actual receipt in order to contradict the deemed day of service under rule 6.7.
- We have, however, concluded that the appeal should be dismissed on the ground that the judge was entitled in the exceptional circumstances of this case to make an order dispensing with service of the claim form. It was submitted on behalf of the defendant Home Office that there was no material on which the judge could properly have exercised his discretion in favour of Mr Dorgan and that his order should be set aside: in particular, there was no explanation for late service of the claim form; the claim is stale, the alleged events having occurred in 1995; and the effect of the order would be to deprive the defendant of the benefit of an accrued limitation defence.
- In our judgment, the judge was entitled to exercise his discretion under rule 6.9 to dispense with service of the claim form. The judge inferred that the reason for the delay in the service of the claim form was that the claimant’s solicitors erroneously believed that they had to serve the particulars of claim and the medical report, as well as the claim form, within the period of 4 months. It is agreed that the claim form was received by fax on Friday 10 August only 3 minutes after the 4 p.m. deadline for service by fax on that day and it came to the attention of the defendant’s solicitor shortly thereafter. The period for service of the claim form did not expire until the following day, Saturday 11 August. Within minutes the defendant’s solicitor faxed back to the claimant’s solicitor requesting that 5 more pages of the medical report, which had not come through, be faxed. That was then done. The application to dispense with service was made promptly after the claimant’s solicitors were notified that it was not accepted that there had been effective service of the claim form. An order dispensing with service will not prejudice the defendant, other than depriving it of a time point on the rules which may be removed by the exercise of the discretion under rule 6.9. The defendant had already been notified of the claim and had been supplied with details of it in correspondence. On the other hand, the claimant will be prejudiced by a refusal to dispense with service, in that his claim will be statute barred and he will be deprived of a trial on the merits of a claim.
F. Cummins
- The question on this appeal is whether, on an application for permission to serve a claim form out of the jurisdiction after the expiration of 4 months from the issue of a claim form marked “not to be served out of the jurisdiction”, the discretion of the court is governed by the criteria contained in rule 7.6(3) relating to the extension of time for serving a claim form? In our judgment, the discretion exercisable on an application made before the end of the 6 months period allowed for service of the claim form out of the jurisdiction is governed by the “The Special Provisions about Service out of the Jurisdiction” in Section III of Part 6 of the CPR (rules 6.17 to 6.31). The discretion is not governed directly or indirectly by rule 7.6(3), which does not form part of the “Special Provisions”, or by the criteria set out in that rule. We allow the appeal from the order made by Gray J on 5 September 2001 setting aside an earlier order of Master Murray, who gave permission to serve the claim form out of the jurisdiction, and striking out the claim against the second defendants.
- On 10 February 1998 Mr Gregory Cummins, a sea-going marine engineer, was injured in an accident at work on a vessel, Ms Halia, on which he was employed as a third engineer. The claim is said to be substantial. On 2 February 2001, a week before the expiration of the limitation period, he issued a claim form pleading negligence and breach of statutory duty and claiming damages for his injuries and for loss of earnings. The claim form was stamped “Not for service out of the jurisdiction.”
- The defendants were named as (1) Shell International Trading & Shipping Co Limited, an English registered company which owned and operated the vessel on which the accident occurred, and (2) Shell International Manning Services Limited, a Singaporean company, which employed Mr Cummins and was stated to have an address in the Isle of Man, which is outside the jurisdiction of the court as defined in the CPR: rule 2.3(1). A Memorandum of Agreement with Shell International Manning expressly provided that the conditions of employment of British Officers “shall be governed by and construed in accordance with English law and the parties submit to the jurisdiction of the English courts.”
- No attempt was made to serve the claim form on either defendant within the period of 4 months mentioned in rule 7.5(2). The time for service of the claim form in the jurisdiction expired on 1 June 2001. Under rule 7.5(3) there was 6 months in which to serve the claim form out of the jurisdiction, but permission to do so was required under rule 6.20. Neither rule 7.5(3) nor the “Special Provisions” in Section III of Part 6 of the CPR about service out of the jurisdiction, as set out in rules 6.17 to 6.31, expressly state the time within which an application for permission to serve out of the jurisdiction must be made nor do they identify particular criteria applicable to an application for permission to serve out of the jurisdiction made after the end of the period of 4 months from the issue of the claim form.
- On 8 June 2001 Master Murray granted permission to serve on Shell International Manning in the Isle of Man as a “necessary and proper party to the claim” under rule 6.20.3(b) on an application issued on the same day. He also gave permission to renew the claim form, extended for 21 days the time for serving the claim form on both defendants and provided for service to be effected on them at the registered office of the first defendants (by way of substituted service on the second defendants) by 6pm on Sunday 10 June 2001. Service of the claim form on the first defendants was the premise in the rule under which the application for permission was made and granted. An extension of time was accordingly required under rule 7.6(3) for service of the claim form on the first defendants in the jurisdiction.
- On 20 June 2001 the claim form was served on the first defendants. The claim against them is no longer pursued and has been struck out by consent. Shell International Manning was unwilling to accept service within the jurisdiction. On 25 June 2001 the claim form was served on Shell International Manning in the Isle of Man. It was deemed to have been served on 26 June 2001.
- Thus the claim form was served out of the jurisdiction within the period of 6 months from its issue, but pursuant to permission granted on an application made after the expiration of the period of 4 months from issue of the claim form.
- On 29 June 2001 an Application Notice was issued by the defendants to set aside the orders. The application was ordered to be referred to the Judge. On 5 September 2001 Gray J set aside the orders of Master Murray granting permission to serve the claim form out of the jurisdiction on the first defendants as “a necessary or proper party” and the extension of time for service on both defendants. He struck out the claim against Shell International Manning on the basis that the CPR required the application for permission to serve out of the jurisdiction to be made within 4 months of the date of the issue of a claim form marked “Not for service out of the jurisdiction,” even though the second defendants’ address on the claim form is outside the jurisdiction, and that the court’s discretion to extend the time for service should not be exercised. The claim form was not served on the first defendants within the 4 month period prescribed by rule 7.5(2). The application to extend the time for service was not made until after the expiration of the 4 month period. There is a discretion to extend the time for service of the claim form, but it is a limited discretion. There was no explanation for the non-service of the claim form on either of the defendants within the period of 4 months. The judge applied by analogy the strict criteria governing extensions of time under rule 7.6(3) to an application for permission to serve out a claim form out of the jurisdiction after the end of the period of 4 months. He noted the strict approach taken by the courts in cases such as Vinos v. Marks & Spencer (see above) to extensions of time for the service of claim forms. He gave permission to appeal.
- Mr Young QC made it clear that Shell International Manning, for whom he appeared, accept that there was a submission to the jurisdiction in the Memorandum of Agreement and that he was not relying on any argument that the Master’s order granting permission to serve out of the jurisdiction was made on the wrong basis in the absence of service of the claim form on the first defendants in the jurisdiction within the period of 4 months from its issue.
- He also explained that it was not now contended, as it had been before Gray J, that the application for permission to serve the claim form out of the jurisdiction must be issued before the end of the period of 4 months from the issue of the claim form. His submissions on the appeal focused on the criteria to be applied to the exercise of the discretion to grant permission to serve a claim form out of the jurisdiction after the expiration of the 4 months from the issue. He submitted that the criteria to be applied are by analogy those contained in rule 7.6(3). Gray J had adopted that approach in his refusal to exercise his discretion to grant permission, in the absence of any satisfactory explanation for the delay in service. On well settled principles, this court should decline to interfere with that decision.
- Mr Young developed his submissions on the effect of the CPR by reference to the position under the Rules of the Supreme Court, as amended with effect from 16 December 1996 by article 4 of The Rules of the Supreme Court (Amendment) 1996, relating to the duration and renewal of writs and concurrent writs in Order 6 rule 8(1) and (1A) RSC. The position following the amendments was that, for the purposes of service, a writ (other than an Admiralty writ in rem, which was valid in the first instance for 12 months) was valid in the first instance for 4 months, unless issued with leave to issue and serve out of the jurisdiction or for service out of the jurisdiction and duly indorsed, in which cases the writ was valid for 6 months. If an original writ had not been issued for service out of the jurisdiction, then, provided a concurrent writ for service out of the jurisdiction had been issued within 4 months from the date of issue of the original writ, such concurrent writ should in the first instance be valid for service out of the jurisdiction for a period of 6 months beginning with the date of issue of the original writ. The background to the changes was explained by reference to what Mr Young described as “the old, old law” discussed in the judgment of Mance J in Dong Wha Enterprise Co Ltd v. Crownson Shipping Ltd [1995] 1 Lloyd’s Rep 113; to the “old law” discussed in his judgment in Fremont Insurance Co Ltd v. Fremont Indemnity Co [1997] CLC 1,428; and to the decision of the Court of Appeal in Vitol Energy (Bermuda) Ltd v. Pisco Shipping Co Ltd [1998] 1 Lloyd’s Rep 509.
- The position under the CPR, it was submitted, was that a claim form was required by rule 7.5(2) to be served within 4 months of issue, unless and until the claimant had established the right to serve it out of the jurisdiction in accordance with the provisions of rule 6.19 or 6.20. If permission to serve the claim form out of the jurisdiction was not obtained within 4 months of its issue, the criteria guiding the exercise of the court’s discretion, when an application was made for permission to serve it out of the jurisdiction, would generally include those set out in rule 7.6(3), especially when a limitation defence might otherwise be material. In support of this approach the recent decision of Andrew Smith J in National Bank of Greece v. Outhwaite [2001] 1 Lloyd’s Rep 652 (a case of proceedings against a representative defendant, representing persons within the jurisdiction) was cited. He held (in paragraph 46 on p. 663) that-
“…if the effect of permission for service out of the jurisdiction is to breathe new life into a Claim Form after the four-month period, this will always be an important consideration in deciding whether or not permission to serve out of the jurisdiction should be given. CPR 7.6(3) restricts the circumstances in which a court may make an order allowing service of a Claim Form which has expired. Although CPR 7.6(3) does not, I think, directly apply to an application for permission to serve out of the jurisdiction in these circumstances, in deciding whether or not such permission should be given in a case such as this, the court should not ignore the strict approach stipulated in CPR 7.6(3) to extending service periods which have expired. If the effect of the order is to set aside the general rule of a four–month period and to extend it to six months and an application is made after the end of the four-month period, it would only be in rare cases that the court would permit service out of the jurisdiction unless the conditions stipulated in CPR 7.6(3) are satisfied. If, because the proceedings are representative proceedings, the effect of the order is to set aside the general rule and expose to a claim persons within the jurisdiction who are represented by the nominated defendant, the reasons for requiring the conditions of 7.6(3) to be satisfied upon the application for permission to serve out are all the more powerful.” [The judge went on to hold that the conditions of rule 7.6(3) were not satisfied in that case and that the discretion to permit service out of the jurisdiction should not be exercised to save the claimants from the consequences of not issuing and serving the proceedings more promptly.]
- Our conclusion on the construction of the relevant provisions of the CPR is that, on their natural and ordinary meaning, the discretion to grant permission to serve a claim form out of the jurisdiction is not subject to any express or implied requirement or condition
1) that the application must be made before the end of the period of 4 months from the issue of a claim form marked “not for service out of the jurisdiction”; or that
2) different discretionary criteria apply to an application for such permission made after the end of the period of 4 months from the issue of the claim form than apply to an application made within that period ; or that
3) the criteria set out in rule 7.6(3) apply directly or indirectly to the exercise of the discretion, whether the application is made before or after the end of the period of 4 months from the issue of such a claim form.
- The relevant provisions governing permission to serve a claim form out of the jurisdiction are in the “Special Provisions” in Section III of Part 6 (see also rule 6.5(1)), not in the general provisions in Part 7, save for the time for service of the claim form out of the jurisdiction in 7.5(3), as to which no extension of time was required, as the 6 month period for such service had not expired. In those circumstances it would require clear words to restrict, in the manner contended for by Mr Young, the exercise of the discretion to grant permission to serve the claim form out of the jurisdiction. There are no such restrictive words in Part 6 or Part 7 CPR nor are there any strong contextual indicators that the discretion was intended to be so circumscribed. The historical context relied on in the references to the Rules of the Supreme Court concerning the duration and validity of writs and concurrent writs and the authorities on them throws little light on the construction of the language of the relevant CPR. The CPR on this point are modelled upon the previous County Court Rules rather than the Rules of the Supreme Court. In our view the decision in Bank of Greece v. Outhwaite is plainly explicable by the special feature of the representative character of the proceedings. In the circumstances Master Murray was entitled to exercise his discretion to grant permission to serve the claim form on Shell International Manning out of the jurisdiction.
- For the above reasons we allow this appeal.
Bryant v Mike Beer Transport
Order:
- Appeal allowed
- Order of His Honour Judge Holman dated 10 January to be set aside and the action be reinstated.
- The respondents do pay the appellant’s cost of the appeal and hearing before His Honour Judge Holman on 10 January 2002 such costs to be subject to detailed assessment unless otherwise agreed.
Cummins v Shell International
Order;
- Appeal allowed
- Order Gray J of 5 September 2001 be varied to read:
“(i) The claim against the first defendant be struck out by consent;
(ii) the second defendant’s application to set aside the order of Master Murray sealed on 11 June 2001 and to strike out the claimant’s claim is dismissed;
(iii) the claimant do pay the first defendant’s costs of the application including the costs of the hearing in front of Master Tenant on 12 July 2001 and the second defendant to pay the claimant’s costs of appeal such costs to be subject of a detailed assessment if not agreed.”
- The 2nd defendant do pay the costs of appeal to be subject to detailed assessment if not agreed;
- The 2nd defendant to repay to the claimant that proportion of the £9,500 to it by the claimant pursuant to of order of Gray J of 5 September 2001 plus interest as is agreed or adjudged in a detailed assessment.
- Leave to appeal to the House of Lord refused.
Chambers v Southern Domestic Electrical
Order:
- Appeal allowed.
- No order as to costs here or below
- Leave to appeal to the House of lords refused
- Judgment entered for damages to be assessed by consent
Anderton v Alwyd County Council
Order:
- Appeal allowed with costs here and below
Dorgan v Home Office
Order:
- Appeal dismissed
- Appellant to pay the respondent’s costs
- Leave to appeal to the House of Lords refused
(Order does not form part of the approved judgment)
