Good Law Project v (1) Secretary of State for Health and Social Care and (2) Pharmaceuticals Direct Limited  EWHC 1782 (TCC)
On 29 June 2021 the High Court (Mrs Justice O’Farrell DBE) handed down a judgment that will cause many a sleepless night for procurement and public law litigators wondering if that claim form has been properly served...
This is the latest instalment in a series of high profile claims that the Good Law Project (GLP) has brought against the Secretary of State for Health and Social Care in relation to the government’s procurement of PPE during the Covid 19 pandemic.
The rules on service of a claim form
The rules are clear. Court proceedings are started when the court issues a claim form, and the date of issue is the date on which it is sealed (i.e. stamped, dated, and allocated a claim number) by the court.1 In judicial review proceedings (which these were) the claim form must be served on the defendant within 7 days after the date of issue.2 A claim form can be served on a defendant by email if the defendant (or their solicitor) has indicated that they will accept service by email and the email address to which the claim form must be sent.3
During April 2021 GLP’s solicitors and the Government Legal Department (GLD) engaged in pre-action correspondence by email and letter. GLD’s emails contained a footer which confirmed that they would accept service of claim forms by email to firstname.lastname@example.org.
On 27 April 2021 GLP’s solicitors filed a claim form with the Administrative Court. On the same date it sent the unsealed claim form to GLD’s ‘new proceedings’ email address and to the email address of the solicitor within GLD who was instructed by the defendant and who had exchanged pre-action correspondence with GLP’s solicitors. On 28 April 2021 the court sealed the claim form. On the same day GLP’s solicitors sent the sealed claim form to the email address of the solicitor acting for the defendant (who acknowledged receipt), but not to the ‘new proceedings’ email address.
The deadline for service of the claim form was 5 May 2021. On 6 May 2021 GLD pointed out that they had not been properly served (at the ‘new proceedings’ email address) before that deadline. Later that same day – 6 May 2021 – GLP’s solicitor’s emailed the sealed claim form to the ‘new proceedings’ email address.
The defendant applied to have the claim form set aside for want of jurisdiction on the grounds that it had not been properly served before the relevant deadline.
The court’s decision
Legal proceedings are brought into existence when the claim form is sealed. Before that moment, the proceedings do not exist. The court rejected the claimant’s argument that sending the unsealed claim form to the ‘new proceedings’ email address amounted to valid service of a procedurally defective claim, and that the court rules4 allowed that defect to be rectified. The court’s view was that to permit a claim form to be served before the claim existed would lead to “procedural chaos.”
This is difficult to reconcile with the earlier decision of Heron Bros Ltd v Central Bedfordshire Council.5 In that case the court held that an unsealed copy of a claim form was treated as a claim form for the purposes of the Public Contracts Regulations 2006.6 The court in the present case distinguished Heron Bros on various grounds including that the 2006 Regulations required service of “the claim form” rather than “the sealed claim form”. This, respectfully, has the sound of angels dancing on the head of a pin. The 2006 and 2015 Regulations require an economic operator to “serve the claim form on the contracting authority within 7 days after the date of issue”. This is materially identical to Civil Procedure Rule 54.7 which requires that “the claim form must be served on the defendant ... within 7 days after the date of issue.” Neither provision expressly refers to the “sealed claim form”. The court’s purposive approach in Heron Bros does not appear to have led to any “procedural chaos”, in that case or since.
In the alternative to its arguments about the validity of service, GLP applied for a retrospective (one day) extension of time for service of the sealed claim form. This was rejected by the court apparently on the grounds that failure to serve the claim form on time was “serious and significant” because in the absence of valid service a defendant is not subject to the court’s jurisdiction. It is accepted that the effect of non-compliance can be a relevant factor in assessing the seriousness of a breach (for example because the breach imperils a trial date). But to elevate this to a hard-edged rule under which a delay is always serious because it has a particular effect, would make it impossible to distinguish between the seriousness of a one day delay and a one month delay.7
Earlier cases8 have confirmed that in assessing the seriousness of a breach it is important to focus on the purpose of the rule in question. The purpose of Civil Procedure Rule 54.7, it is submitted, is to ensure that a defendant is promptly made aware that a case has been brought against it, and what the essence of that case is. The effect of non-compliance with the rule is that the defendant is not subject to the court’s jurisdiction. But the effect of non-compliance with a rule is not the same as its purpose.
Various other procedural arguments were made by both sides and this articles addresses only some of them. The judgment is a salutory reminder of the serious consequences of getting service wrong. The lesson for litigants is to ensure that both parties have a clear (and identical) understanding of how service will be effected and accepted. And if in doubt, check and check again. In the short and intense pre-action periods in procurement disputes and judicial reviews, this can easily be forgotten.
GLP have stated that they intend to appeal this decision, so watch this space...
1 Civil Procedure Rule 7.2
2 Civil Procedure Rule 54.7. The same requirement applies to “Part 7” claims brought under the Public Contracts Regulations 2015 – see Regulation 94(1)
3 Practice Direction 6A of the Civil Procedure Rules
4 Specifically Civil Procedure Rule 3.10
5  EWHC 604 (TCC)
6 The relevant parts of the 2006 Regulations are materially identical to those of the 2015 Regulations.
7 There are numerous cases in which the court has found that a short delay was not serious but that longer delays (often several weeks or months) are serious.
8 For example Viridor Waste Management Ltd v Veolia ES Ltd  EWHC 2321 (Comm)