TRAINING - Clinical negligence and the Emergency Department
Jan 25 2022
Bevan Brittan Clinical Risk Department Education Lunch Training Webinars 2022Read More
We have seen a number of new cases arising from late service of Claim Forms and this summary is intended to provide some clarity into an area which has seen too much needless change in the writer's view.
Service of Claim Forms has long provided a rich seam of work for professional negligence lawyers dealing with claims against fellow solicitors despite, or perhaps even because of, a series of changes to the Court rules intended to simplify the requirements of service and thus avoid satellite litigation. Like moths to a flame, lawyers seem intent on leaving service until the last possible moment with no margin for error and then asking the Courts to excuse the error when their luck runs out. It was in this context that the concept of deemed service became an integral part of our service rules in order to provide certainty, even where there was actual evidence of receipt by a Defendant either earlier or later than the deemed service date (see Godwin -v- Swindon BC  EWCA Civ 1478, Anderton -v- Clwyd CC  EWCA Civ 933 and Leeson -v Marsden & United Bristol Health NHS Trust  EWCA Civ 20). Under the old rules the onus was on the Claimant to ensure that deemed service of the Claim Form took place before the validity period of the Claim Form expired (usually 4 months after issue or 6 months where it is to be served out of the jurisdiction) and this does not seem like an impossible burden for professionals being paid considerable fees for their services. The rules seemed to have been made clear by 2006 if not before, even if weekends or public holidays occasionally threw lawyers into a state of confusion about whether to count them in or out.
Despite finally having arrived at a position that seemed to be working that (nearly) everyone understood the Civil procedure Rules Committee did not stop there. Another amendment was introduced with effect from 1 October 2008 which Jonathan Fuggle covered in the October 2008 edition of Claims-on-line.
From 1 October 2008 you could forget about deemed service. Well almost. Under the current rules deemed service is retained in its full glory for documents other than a Claim Form. However, in relation to Claim Forms the relevance of deemed service under CPR Part 6.14 is of interest only for the computation of subsequent time limits for service of the Particulars of Claim under Part 7.4, or the Acknowledgment of Service/Defence under Parts 10/15, or for the computation of interest on general damages, for example. Crucially it has nothing to say about whether or not the Claim Form is either late or still valid (or as we used to say, whether it was served in time!).
Under the new regime post-1 October 2008 all that matters is whether or not the Claimant took the step required by the following table before 12.00 midnight on the calendar day four months after the issue of the Claim Form depending on how the Claim Form is being delivered to the Defendant:
|Method of Service||Step required|
|First Class Post, DX, or other service which provides for delivery on the next business day||Posting, leaving with, delivering to or collection by the relevant service provider|
|Delivery of documents to or leaving it at the relevant place||Delivering to or leaving the document at the relevant place|
|Personal service under rule 6.5||Completing the relevant step required by rule 6.5(3)|
|Fax||Completing the transmission of the fax|
|Other electronic method||Sending the e-mail or other electronic transmission|
In other words, it is the act of posting the envelope or leaving
with the Document Exchange, as the case may be, that prevents the
Claim Form from expiring and requires the Defendant to take steps
either to Acknowledge Service (!) or dispute the Court's
jurisdiction. It is not 'service' that matters, deemed or
otherwise. Service will still not be deemed to have taken
place until the second business day after taking the Required
Step. For example, where a Claim Form is issued on 1 January
the Required Step must be taken by 12.00 hours on 2 May, being the
calendar day four months after issue, and provided this is done it
will not fail for lateness even though deemed service under Part
6.14 will not take place until 4 May assuming this is a business
For the avoidance of doubt and to preserve some sanity the word 'service' should have been banned from this section of the CPR altogether. So how did the Rules Committee elect to name this amended rule 7.5 to avoid any lingering confusion or misidentification with service? The new rule about the Required Step is aptly (mis-)named, "Service of a Claim Form". Hopefully there will be no more amendments for a year or two.
We have seen a number of recent cases about the effect of this amendment because of agreements extending time. For example, in one case a Claimant issued proceedings and after almost four months requested more time to complete investigations into whether or not there was a valid claim. Two successive orders were agreed extending time for service until a specified date. The Claimant left it until late on the last date and then put the Claim Form in the Document Exchange. Absent these two extensions there would have been no problem as the Required Step was taken before midnight on the last day but because the wording of the orders extending time had specified 'service' we disputed the Court's jurisdiction on the grounds that the Claim Form had been served late. Which should take precedence - the wording of the consent orders specifying the requirement for 'service' (as had always been the case before 1 October 2008) or the new Part 7.5 that would only have required taking the Required Steps if this was how the consent orders had also been worded? There is no judgment or other authority on the point to our knowledge but our costs were paid in full by the Claimant without a hearing.
The moral of the story is obviously not to leave the Claim Form until the last minute but 'service' will probably carry on producing jurisprudence and work for professional indemnity lawyers. Defendants need to be aware of the new rules too and obtain immediate advice when in doubt.