Claim form – Service – Extension of time – Defendants employing claimant to carry out works under building contract – Dispute arising over allegedly defective works – Claimant sending photocopy of sealed claim form to defendants’ solicitors by way of document exchange – Court striking out claim for failure to serve particulars of claim in time – Claimant applying to set aside order – Whether claim form being validly served under CPR rules – Application granted
The defendants employed the claimant to carry out building works to their property in Colchester under a contract entered into in 2010 in the JCT Intermediate Form of Contract. A dispute arose concerning allegedly defective works and the claimant issued proceedings against the defendants. Under the provisions of the Intermediate Form of Contract, proceedings had to be commenced within 28 days of the final certificate in order to prevent the final certificate becoming conclusive in relation to matters in issue between the parties.
The court struck out the claim on the basis that the claimant had failed to serve particulars of claim pursuant to CPR 7.4(1)(b). The order stated that as it had been made without notice to the claimant, the claimant was entitled to apply to have the order varied or set aside pursuant to CPR 23.10.
CPR 6.3(b) provided that a claim form might be served, among other things, by first class post, document exchange or other service which provided for delivery on the next business day, in accordance with Practice Direction 6A.
The claimant applied to have the order striking out its claim set aside on the ground that the defendants’ application for strike out had been based on an erroneous view that the claim form had been served upon them and that particulars of claim had not been served within the 14-day time limit. The claimant contended that in fact only a photocopy of the claim form had been sent to the defendants’ solicitors for the purposes of information, so that the claim form had not yet been served and particulars of claim were not yet due for service.
Held: The application was granted.
As a general rule, a claim form was the document issued by the court on which the court seal was placed and the Civil Procedure Rules (CPR) generally required service of a hard copy document as issued and sealed by the court and a photocopy of that document was not sufficient. When a claim form was issued, there was an original sealed claim form retained by the court and original sealed claim forms provided so that one could be retained by the claimant and one or more could be served on the defendants. There were clearly exceptions. When a claim form was served by fax or other means of electronic communication under CPR 6.3(1)(d) in accordance with Practice Direction 6A then, necessarily, there was no service of the original document issued and sealed by the court. In such circumstances the hard or soft copy of the fax or the soft copy or print out of the attachment to an e-mail was the document served but in each case the hard or soft copy represented a copy of the claim form issued and sealed by the court: Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656; [2003] PLSCS 113; [2003] 21 EG 191 (CS) applied; Weston v Bates [2013] 1 WLR 189 considered.
In the present case, the photocopy of the claim form which was sent by Document Exchange to the defendants’ solicitors on 23 January 2013 was not the document required for service to be achieved under CPR 6.3. In order to effect proper service by that means a claim form, as issued and sealed by the court and as an original document would have had to have been enclosed with the claimant’s letter.
Therefore the claim form was not properly served on 23 January 2013 when a photocopy was sent with that letter. The claim form was still effective for service and the judgment of the court striking out the claim would be set aside.
Jane Lemon (instructed by Prettys, of Ipswich) appeared for the claimant; Jonathan Selby (instructed by Birketts LLP, of Ipswich) appeared for the defendants.
Eileen O’Grady, barrister
