Claim form – Method of service – Authorisation – Claimants purporting to serve claim form on defendants’ solicitors by fax – Defendants denying solicitors’ authority to accept service – Whether service valid and effective — Whether order authorising alternative method of service appropriate – Claimants’ application dismissed – Defendants’ application allowed
The claimants had invested in schemes in the fields of information and communications technology. They brought proceedings against the defendants, alleging that the schemes were shams and a fraud on the investors. The seventh and eighth defendants were represented by solicitors, neither of which had been asked to state, or had stated, that it was instructed to accept service of claim forms. The claimants’ solicitors purported to serve the claim forms by faxes sent to the defendants’ solicitors in February 2009 in accordance with CPR 6.3(1).
The claimants argued that the faxes constituted valid service pursuant to CPR 6.3(1)(d) and para 4.1 of PD 6A, which provided that a claimant could serve a claim form on a defendant or its solicitor by fax if those parties had indicated in writing to the claimant that it was willing to accept such service. In this case, the fact that the defendants had set out their respective fax numbers in correspondence was a sufficient indication that they were willing to accept service by fax.
The seventh and eighth defendants applied to the court for declarations that the claim forms had not been validly and effectively served on them since a claim form could be served on a solicitor pursuant to CPR 6.7 only if either the defendant had given in writing the business address of a solicitor as an address that could receive service or the solicitor in question had notified the claimant in writing that it had been instructed to accept service. The claimants applied for permission, under CPR 6.15, to serve the claim forms by resending them by fax as they had previously done.
Held: The claimants’ application was dismissed; the defendants’ application was allowed.
The claim forms had not been validly or effectively served in February. CPR 6.3 was concerned with the method of service and not the circumstances in which service on a defendant’s solicitor could be valid. The defendants’ argument that CPR 6.7 provided an exhaustive regime for service was to be preferred, especially since it gave CPR 6 a coherent and sensible structure.
There was no apparent reason why the fact that a defendant’s solicitor had a fax number on its writing paper would mean that the solicitor could be validly served, although it made sense that if the claimant had been told that the solicitor could be served, service upon it could be by fax.
The wording of PD 6A made it clear that para 4.1 applied so far as service on a solicitor was concerned only where the solicitor was “acting for” the party to be served. It followed that PD 6A was referring to the situation in which a solicitor was to be served under CPR 6.7. That qualification was assisted by the fact that a solicitor on which service was required by CPR 6.7 might not have been authorised to accept it.
Furthermore, the circumstances of this case did not justify an order under CPR 6.15. The court might permit service by an alternative method where it appeared that there was good reason to do so. However, respect had to be paid to the rules concerning the service of claim forms and, even if exceptional circumstances were not required to justify a retrospective order, the rules required a good reason and the court should adopt a rigorous approach to an application by a claimant for an indulgence. Absence of prejudice to a defendant would not usually in itself be sufficient reason to make an order under CPR 6.15.
Graham Chapman and Shail Patel (instructed by Addleshaw Goddard LLP) appeared for the claimants; Andrew Hunter (instructed by Byrne & Partners) appeared for the seventh defendant; Benedict Hubble QC (instructed by Beachcroft LLP) appeared for the eighth defendant.
Eileen O’Grady, barrister
