Cranfield & Anor v Bridgegrove Ltd.

The interpretation and application of CPR 6.9 (power of the court to dispense with service) and CPR 7.6 (extension of time for serving a claim form) continue to cause difficulty despite several recent attempts by this court to elucidate the relevant principles. There are before the court five appeals which raise several issues relating to these two rules. It is convenient to set out the relevant provisions at the very outset:

“CPR 6.9 – (1) The court may dispense with service of a document.

(2)

An application for an order to dispense with service may be made without notice.”

“CPR 7.6 – (1) The claimant may apply for an order extending the period within which the claim form may be served.

(2)

The general rule is that an application to extend the time for service must be made –

(a)

within the period for serving the claim form specified by rule 7.5; or

(b)

where an order has been made under this rule, within the period for service specified by that order.

(3)

If the claimant applies for an order to extend the time for service of the claim form after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –

(a)

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.”

CPR 7.5(2) provides that “the general rule is that a claim form must be served within 4 months after the date of issue.”

Before we discuss the issues that arise, we need to refer to the recent decisions of this court that bear on the questions that we have to decide.

In Vinos v Marks & Spencer [2001] 3 All ER 784, it was decided that, after the expiry of the time limit for service of a claim form, the court has no power to extend the time for service if the circumstances fall outside CPR 7.6(3). At para 20 of his judgment, May LJ said:

“If you then look up from the wording of the rules and at a broader horizon, one of the main aims of the CPR and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. Criticism of Mr Vinos’ solicitors in this case may be muted and limited to one error capable of being represented as small; but there are statutory limitation periods for bringing proceedings. It is unsatisfactory with a personal injury claim to allow almost three years to elapse and to start proceedings at the very last moment. If you do, it is in my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits. Four months is in most cases more than adequate for serving a claim form. 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 time requirement and do not satisfy the conditions in r 7.6(3), your claim is lost and a new claim will be statute-barred.”

In Elmes v Hygrade Food Products Plc [2001] EWCA Civ 121, it was held that, where a claim form is served in time but is incorrectly served (in that case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service by an alternative method) retrospectively to remedy the error by deeming good service to have been effected by an alternative method not permitted by the rules. A similar conclusion was reached in Nanglegan v Royal Free Hampstead NHS Trust [2001] EWCA 127, [2002] 1 WLR 1043, where service had been incorrectly effected on the defendant rather than its solicitors: the defendant had given its solicitors’ address for service (CPR 6.5(2)).

Godwin v Swindon Borough Council [2001] EWCA 1478, [2002] 1 WLR 997 was principally concerned with the interpretation of CPR 6.7(1) (rules for deemed service). But the court also said (para 50 of May LJ’s judgment) that CPR 6.9 cannot be invoked to dispense with service “when what would be done is in substance that which CPR 7.6(3) forbids.”

In Anderton v Clwyd County Council [2002] EWCA Civ 933, [2002] 1 WLR 3174, a different view was expressed as to the scope of CPR 6.9. The judgment of the court was given by Mummery LJ. At para 2, he said:

“Now that the disputed interpretations of the Civil Procedure Rules have been resolved by Godwin’s case 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.”

At para 3, he summarised the legal position as including the following:

“…(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 four 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;”

The conclusions of the court on the scope of CPR 6.9 were stated as follows:

“55.

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 [2001] EWCA Civ 121 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’s case. There may, however, be exceptional cases in which it is appropriate to dispense with service without undermining the principle in Godwin’s case 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.

56.

In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin’s case, between two different kinds of case.

57.

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’s case 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.

58.

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 four 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 to 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).

59.

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.”

The court then turned to consider the five appeals that were before it. Two are of some relevance to the issues which we have to consider. In Chambers v Southern Domestic Electrical Services Ltd, the claim form was sent by first class post to the defendant’s solicitors on 12 July 2001, and it actually arrived on the next day, which was the last day for service. By virtue of CPR 6.7(1), service was irrebuttably deemed to have taken place on 14 July, and there were no grounds for extending the time for service under CPR 7.6(3). Since the claim form had been received by, and had come to the attention of, the defendant’s solicitor (who was the correct person on whom to effect service) before the end of the four month period for service, the court regarded the case as “exceptional”, and dispensed with service under CPR 6.9.

In Dorgan v Home Office, the period for service expired on 11 August 2001 (a Saturday). At 4.02 pm on 10 August, the claim form was sent by fax by the claimant’s solicitor. The receipt of the fax by the defendant’s solicitor (again the person authorised to accept service) was recorded as commencing at 4.03 pm. The defendant’s solicitor read the fax and made a telephone call about it to the claimant’s solicitor soon thereafter. The claim form was deemed to be served on 13 August (a Monday), since CPR 6.7(1) provides that, if a fax is transmitted before 4 pm on a business day, it is deemed to be served on that day, but in any other case, it is deemed to be served on the business day after the day on which it is transmitted. The application to dispense with service was made promptly after the claimant’s solicitor was notified that it was not accepted that there had been effective service of the claim form. The court made an order dispensing with service.

The last in the series of cases to which it is necessary to refer is Wilkey and another v BBC and another [2002] EWCA Civ 1561, [2003] 1 WLR 1. The claim form was delivered to the defendant’s legal department at 2 pm on 28 February 2001, the last day for service. By virtue of CPR 6.7(1), the claim form was deemed to have been served on 1 March. This court allowed an appeal by the claimant against the decision of the judge refusing to dispense with service under CPR 6.9. Giving the leading judgment, Simon Brown LJ referred to paras 55-59 of the judgment in Anderton. He conveniently described cases where the claimant has sought to serve the claim form by a permitted method of service and the form has in fact been received by the defendant before the end of the period for service as “category 2 cases”, a category, as he put it, “not previously recognised by the authorities” (para 3).

Simon Brown LJ proposed a solution to the possible problem identified in the July 2002 edition of Civil Procedure News, which, responding to Anderton, had commented:

“It is to be feared a disproportionate amount of time and effort may have to be expended by procedural judges dealing with applications based on this aspect of the Anderton case”.

He expressed his solution in the following terms:

“18.

…In category 2 cases which, like the present (and, as I am led to believe, like a number of other appeals now awaiting hearing in this court), involve deemed late service before this court’s decision in Anderton the rule 6.9 dispensing power should ordinarily be exercised in the claimant’s favour unless the defendant can establish either that he would suffer prejudice (apart, obviously, from the loss of his Limitation Act 1980 defence) or some other good reason why the power should not be exercised. Merely to establish that the claimant has been guilty of avoidable delay in either the issue or the service of the claim form, or both, would not generally constitute such good reason. There will always have been some avoidable delay. Similarly, the fact that the claim looks unpromising would not generally be a good reason for refusing to exercise the dispensing power in a pre-Anderton category 2 case. In a post-Anderton case, however, the dispensing power should, in my judgment, ordinarily not be exercised in the claimant’s favour. These cases, albeit within category 2 and therefore in one sense to be regarded as exceptional, to my mind fall foul of paragraph 2 of the court’s judgment in Anderton. In these cases “a strict approach” should generally be adopted.

19.

This approach, in my judgment, will not only provide a useful guide as to how the court may be expected to exercise its discretion in these cases, but it also follows such guidance on the point as the judgment in Anderton affords. It would mean that the court in post-Anderton cases, quite logically, would be the readier to reject the claimant’s explanation for late service and to criticise his conduct of proceedings, both of these being identified in paragraph 59 of the judgment in Anderton as relevant considerations.

20.

This approach also provides a complete answer to Mr Rushbrooke’s superficially persuasive argument that to apply Anderton as the claimants submit is appropriate, namely, as if it creates a presumption in favour of dispensing orders in all category 2 cases, would effectively destroy the deemed service rule since virtually every case of service by physical delivery of the claim form on the last day of the permitted period would involve actual receipt in time, and thus the exercise of the dispensing power. If, as I would hold, the presumption arises in only pre-Anderton cases the deemed service rule, and the highly desirable certainty which it provides, will continue to apply in all but the most exceptional post-Anderton cases.”

In all the cases that are before us, the time for service of the claim form expired before 3 July 2002, the date on which judgment was handed down in Anderton. They were all, therefore, what Simon Brown LJ called “pre-Anderton cases”. The following generic issues arise:

Issues (a) and (b) arise in Cranfield and Claussen. Issue (c) arises in Murphy. Issue (d) arises in McManus. In McManus, service was purportedly on the defendant’s insurers within the 4 month period: it should have been on the defendant himself. The position is more complex in Murphy, but as will appear, issue (d) also arises contingently in that appeal. In Murphy, service was purportedly effected on the defendant. There is an issue as to whether it should have been effected on the defendant’s solicitor who had been authorised to accept service on the defendant’s behalf.

The issue that arises in Smith is the meaning of “usual or last known residence”, being the place for service of an individual where no solicitor is acting for the party to be served, and the party has not given an address for service: CPR 6.5(6).

Mr Gaunt QC (whose submissions are adopted by Mr Hamill) submits that, when read in their context, the words “has been unable to serve” do not apply to a situation where the court has not even tried to effect service. CPR 7.6(3)(a) is directed to the situation where the court has decided to adopt one of the methods of service permitted by CPR 6.2, and has encountered an impediment which prevents it from effecting service of the claim form. It is not a necessary condition of being unable to serve that the court should have taken all reasonable steps to serve (contrast the position under CPR 7.6(3)(b)). It is sufficient that the court has been prevented from serving by its chosen permitted method of service. The court must have attempted to serve, or at least applied its mind to the question whether or not to serve. Thus, Mr Gaunt accepts that the following are examples of cases where it can properly be said that the court “has been unable to serve”: (a) it has tried and failed to serve, (b) it has not attempted to serve because it wishes to serve by post, but is prevented from doing so because it has not been given the address for service by the claimant, or (c) it is prevented from serving by lack of resources.

As a matter of ordinary language, Mr Gaunt submits, it is not possible to say that someone has been unable to serve a document if he has not even tried to serve it. As he put it, if a process server is instructed to serve a claim form, and he fails even to try to serve the document, he cannot honestly say that he has been unable to serve the document.

He submits that the CPR are intended to be read as a coherent code, and seeks support for his submissions in the fact that the word “unable” appears three times in the rules relating to the service of documents. First, in CPR 6.11, where the court, if “unable” to serve a document must “send a notice of non-service stating the method attempted to the party who requested service”. In this context, it is clear that the word “unable” denotes an unsuccessful attempt to serve. Secondly, in CPR 7.6(3)(b), which speaks of the claimant having taken all reasonable steps to serve the claim form, but having been “unable” to do so. This too clearly denotes an unsuccessful attempt to serve. And thirdly, in CPR 7.6(3)(a). Mr Gaunt submits that CPR 7.6(3)(a) relates back to CPR 6.11 where the court will have notified the party requesting service that its attempt to serve has been unsuccessful.

We do not accept Mr Gaunt’s submissions as to the meaning of CPR 7.6(3)(a). If they are correct, there is undoubtedly in our view a most regrettable lacuna in the rules, and one for which there is no rational explanation. There is no sensible reason why it should have been intended to exclude from the power to extend time under CPR 7.6(3)(a) those cases where the court has simply failed to effect service in time. The consequences of a failure to serve the claim form in time can be disastrous for a claimant as several of the cases that are before us amply demonstrate. Service by the court is the general rule: see CPR 6.3. The possibility that the court will from time to time fail to serve through neglect is a real one. Why should it have been intended to give the court the power to extend time when the court has tried to serve and has been prevented from doing so by some impediment, but not where the failure to serve has occurred as a result of mere oversight?

The answer given by Mr Gaunt and Mr Hamill is that the perceived lacuna does not in fact exist. They say that the rules provide adequate mechanisms to alert a claimant as to the possibility that the court has failed to serve the claim form, so that there is no need to adopt a strained interpretation of CPR 7.6(3)(a) to cover the situation of non-service by the court through mere neglect. Thus, CPR 6.14(1) provides that where a claim form is served by the court, the court must send the claimant a notice “which will include the date when the claim form is deemed to be served under rule 6.7”. If the claimant does not receive such a notice, he is put on enquiry. Alternatively, if the court has tried but failed to serve, it is required to send a notice of non-service under CPR 6.11. In this way, submit counsel, the rules provide a system which should be foolproof. If a claimant does not receive a notice under CPR 6.11 or a notice under CPR 6.14(1), then he or she should be aware that the claim form may not have been served, and should make enquiry of the court to ascertain the position. In the rare case where the court mistakenly sends the claimant a notice under CPR 6.14(1) stating that it has served the claim form when it has not in fact done so, Mr Gaunt and Mr Hamill submit that a claimant will in principle be entitled to an extension of time under CPR 7.6(3)(b). If, contrary to these submissions, the rules do not provide a foolproof system to protect claimants from court error, then they will have an unanswerable right of action against the Lord Chancellor for damages.

We reject the submission that the rules provide a claimant with sufficient protection against the possibility that the court has simply failed to serve the claim form by neglect, and that this is the reason why CPR 7.6(3)(a) does not deal with that situation. It may be that a competent solicitor, conscientiously acting in the interests of a claimant, is under a duty to communicate with the court if he or she does not receive a notice under CPR 6.11 or CPR 6.14(1) within a reasonable time of the date of the issue of the claim form. But that is not a sufficient reason for concluding that, if Mr Gaunt and Mr Asif are right as to the construction of CPR 7.6(3)(a), there is no lacuna in the rules. First, many claimants are litigants in person. The rules must, so far as possible, be construed in a way which achieves justice for claimants who are unrepresented as well as those who have the benefit of legal representation. It is unreal to suppose that litigants in person will be alive to the possible significance of the absence of a notice under CPR 6.11 or CPR 6.14(1). Secondly, we reject the argument that, where a claimant is misled by the court into believing that the claim form has been served when it has not been served, he can apply for an extension of time for service under CPR 7.6(3)(b) on the footing that he has taken all reasonable steps to serve the claim form, but has been unable to do so. It seems to us that the obvious and natural construction of CPR 7.6(3) is that subparagraph (a) is concerned with cases where service is to be by the court, and subparagraph (b) is concerned with cases where service is to be by the claimant. We do not consider that a claimant can invoke CPR 7.6(3)(b) in a case where service is to be by the court. Thirdly, if it were thought that CPR 6.11 and 6.14(1) provided sufficient protection against the consequences of the court’s inability to serve, it is difficult to see why there should be any need for CPR 7.6(3)(a) at all. It is clear that it was not thought that CPR 6.11 and 6.14(1) do afford sufficient protection. It was therefore necessary to give the court the power to extend time where the court has been unable to effect service of the claim form within the 4 month period. And there is no reason to suppose that it was intended that the court should have this power where the court has failed to serve in some circumstances (ie those suggested by Mr Gaunt and Mr Hamill) and not in others (failure through mere neglect).

We conclude, therefore, that, if the submissions of Mr Gaunt and Mr Hamill are correct, there is a serious lacuna in the rules for which there is no rational justification. It is, of course, possible that the case of failure by the court to serve by neglect was simply overlooked by the draftsman. Unless compelled to do so by clear words, we are unwilling to adopt a construction of the rule which (a) recognises the existence of a lacuna for which there is no rational justification and (b) will inevitably result in injustice to claimants for which there is no justification. Indeed, we would go further. If the argument of Mr Gaunt is correct, then the rules permit the court, by its neglect, to deny claimants access to the court altogether. It would be truly remarkable if the rules permitted an extension of time where the court has been unable to serve in time where the court has not been at fault, but not where there had been a failure to serve the claim form in time through mere oversight. In view of the special status of the common law right of access to the courts, the court should construe the rules as having that effect only if compelled to do so.

Since 2 October 2000, the Human Rights Act 1998 (“HRA”) has been in force. The proceedings in Cranfield are ones to which the HRA apply. The HRA does not, however, apply to the case of Claussen.. We shall consider the true meaning of CPR 7.6(3)(a) first without regard to the HRA.

In our judgment, the words “has been unable to serve” do not bear the restricted meaning for which Mr Gaunt and Mr Hamill contend. At first sight, there seems to be force in the submission that it is a misuse of language to say that someone has been unable to do something which he has not even attempted to do. But the word “unable” does not necessarily connote that there has been a failed attempt. Indeed, this seems to be conceded by Mr Gaunt, since he accepts that “unable to serve” includes the case where the court has decided that it will not attempt to serve, for example, because it does not have the address for service, or it does not have the resources required to effect service. In our judgment, Mr Gaunt is right to accept that it is not a misuse of language to say that someone has been unable to do X when he has not even attempted to do X. Mr Phipps draws attention to CPR PD 44 para 13.8 which provides: “If a summary assessment of costs is appropriate but the court awarding costs is unable to do so on the day, the court must give directions as to a further hearing before the same judge”. In this situation, the court is “unable” to do something which it does not even attempt to do, because it knows that it will not be able to do it. There is no question of a failed attempt. The court simply does not do it. This may be because the court believes that it will not be possible to do it within court hours. Or it may be that the court does not do it because it does not wish to do it. The judge may want to leave court early that day because he has another engagement, or because he is tired. The important point is that, for whatever reason, the court is not able to do the summary assessment of costs on the day.

The fact that “unable” does not necessarily connote that there has been a failed attempt is important. Once the focus shifts from a failed attempt, it becomes clear that the real emphasis is on what happens. If it is not a misuse of language to say that the court was unable to do X because (for whatever reason) it did not wish to do X, then we do not consider that it is a misuse of language to say that the court was unable to do X because it simply failed to do X. In each case, the court could have done X, but did not do it.

Nor do we consider that the contextual points made by Mr Gaunt assist his interpretation. We accept that there is a clear link between CPR 6.11 and CPR 7.6(3)(a). But we do not consider that the reference in CPR 6.11 to a notice of non-service “stating the method attempted” assists in the interpretation of CPR 7.6(3)(a). Indeed, since Mr Gaunt concedes that the court “has been unable to serve” even where it has not attempted service, for example because it does not have the address for service, it is impossible to see how even on his argument CPR 6.11 assists in the resolution of the question at issue. Nor does CPR 7.6(3)(b) assist in the interpretation of CPR 7.6(3)(a).

We conclude, therefore, even without regard to the HRA, the words “has been unable to serve” in CPR 7.6(3)(a) include all cases where the court has failed to serve, including mere oversight on its part. It is therefore unnecessary to consider the position under the HRA. If it had been necessary to do so, we would not have hesitated to adopt what might be considered to be a linguistically strained interpretation in order to read CPR 7.6(3)(a) in a way which is compatible with Article 6 of the European Convention on Human Rights, so as to ensure that litigants are not denied access to the courts, where it is the fault of the courts that the claim form has not been served in time.

The court does, therefore, have the jurisdiction to extend time for service under CPR 7.6(3)(a) where the court fails through neglect to serve in time. It must in all cases decide how to exercise the discretion conferred by the rule. We suggest that in most cases where the real cause of the failure to serve in time is court neglect, it will be appropriate to grant an extension of time if the claimant has acted promptly in making the application (CPR 7.6(3)(c)). But there will be some cases where, although court neglect has contributed to the failure to serve in time, the real cause has been the conduct of the claimant or the claimant’s legal representative. In such cases, the court will often decide not to exercise its discretion to extend the time for service. But each case will turn on its own facts.

The decisions in Anderton and Wilkey have clarified the relationship between CPR 6.9 and CPR 7.6. In pre-Anderton cases, the court may exercise its discretion to dispense with service retrospectively where the claim form, although deemed by CPR 6.7(1) to be served out of time, has in fact been received by the defendant or his legal adviser “by a permitted method of service” within the 4 month period (see Anderton para 58). In the post-Anderton cases, the court will ordinarily not exercise its discretion to dispense with service even in such a case: see Wilkey. It is clear from these two decisions that the basic rule is that the power to dispense with service should not be used to undermine the principle enunciated in Godwin that service should not be dispensed with retrospectively to circumvent the restrictions on granting extensions of time laid down in CPR 7.6(3). The exception recognised in Anderton (confined to pre-Anderton cases) is where the claim form has been received within the 4 months period by a “permitted method of service”. Mummery LJ used this phrase, or an equivalent phrase, three times in paras 57 and 58 of the judgment. CPR 6.2 provides:

“(1)

A document may be served by any of the following methods-

(a)

personal service, in accordance with rule 6.4;

(b)

first class post;

(c)

leaving the document at a place specified in rule 6.5;

(d)

through a document exchange in accordance with the relevant practice direction; or

(e)

by fax or other means of electronic communication in accordance with the relevant practice direction.”

In Anderton, the court did not have to consider whether the exception might also apply in a case where there has been some comparatively minor departure from the permitted method of service. An example of what might fairly be described as a minor departure is where the claim form has been sent by second class post (instead of first class post), and has been sent to the right person at the right address and has been received within the 4 month period. We do not think that we are bound by Anderton and Wilkey to hold that a court could not properly exercise its discretion to dispense with service in such a case. In our view, it is not appropriate to attempt to provide an exhaustive guide to the circumstances in which it is proper to dispense with service of a claim form retrospectively under CPR 6.9, whether in pre-Anderton cases, or in post-Anderton cases. We hope that what we say at paras 49 and 50 below in relation to Claussen, at paras 56 - 60 below in relation to McManus, and at paras 87 and 88 below in relation to Murphy will provide guidance as to the correct approach to be adopted at least in circumstances similar to those that occurred in those cases. We wish to underline the exceptional nature of the power to dispense with service in such cases. The court was at pains to emphasise this point in both Anderton and Wilkey. The Godwin principle is important, and must not be subverted. It will be subverted unless the power to dispense with service retrospectively is confined to truly exceptional cases.

The claimants are the tenants of property at Brinscombe Crescent, Godalming. They hold under two leases, both of which were due to expire on 28 September 2001. They carry on the business of a general store at the premises, where they employ approximately 20 employees. On 20 November 2000, the defendant gave notice under section 25 of the Landlord and Tenant Act 1954 terminating the tenancies on 28 September 2001. The notices stated that an application for a new tenancy would not be opposed. On 12 February 2001, the claimants’ solicitors sent two claim forms to the Guildford County Court with a request that they be issued and served on the defendant at the address provided. On 15 February, the court issued the two claim forms. The court sent formal notices to the solicitors that the forms had been issued on 15 February. These notices were in the Form N209, which is a standard form containing inter alia the following words: “The court sent it [the claim form] with a copy of your witness statement(s) to the defendant by first class post on [ ] and it will be deemed served on [ ]. The defendant has until [ ] to reply”. In both notices, these words were struck out, and the following words added in manuscript: “your application is with the District Judges for directions”. These notices were received by the solicitors on 17 February.

The time for service of the claim forms expired on 15 April 2001. On 23 August, solicitors acting on behalf of the respondent wrote to the claimants’ solicitors stating that no proceedings had been served. Accordingly, they said, the leases would terminate on 28 September and the respondent would then require vacant possession. Mr Falvert-Smith was dealing with the matter on behalf of the claimants. He immediately telephoned the court. What he was told was confirmed in the court’s letter dated 24 August, which stated that the claim forms had not been served: “The copies of the claim form that were to be served were put on the Court file by mistake. Please accept the Court’s apologies for this mishap. The Court will send out the service copies today. I apologise for any inconvenience caused.” On the same day, the claimants’ solicitors sent copies of the claim form to the respondents’ solicitors, and on the following day the court sent the service copies to them too.

On 18 September 2001, the claimants applied for an extension of time for service of the claim forms until 15 October on the grounds that “the failure to effect service of the claim form was due to an error of the court and not as a result of any neglect or default on the part of the claimants. In the circumstances, the claimants have taken all reasonable steps to serve the claim form within the time limited by CPR 7.5”. On 24 September, District Judge Darbyshire dismissed the applications. He applied CPR 7.6.(3), and considered that it could not be said that the court or the claimants had been “unable” to serve within the requisite time for service. He was bound by Vinos, and therefore compelled to dismiss the applications. No application was made to dispense with service.

On 25 January 2002, His Honour Judge Hull QC allowed the claimants’ appeal. He noted that, by reason of the decision in Godwin, he had no power to dispense with service under CPR 6.9. He then turned to CPR 7.6(3)(a) and construed “unable” as including circumstances in which the court had simply failed to serve by incompetence or oversight. Accordingly, he held that the court had been unable to serve the claim forms. Next, he considered whether the claimants had acted promptly in making their applications. He said that the solicitors were instructed promptly, and that they acted promptly on discovering that the claim forms had not been served. He thought that it was “going too far” to expect the solicitors to badger the court and seek confirmation that service had been effected, and effected in time. He said that they were entitled to assume that all was well, and that all had been done in accordance with the rules. He then considered the exercise of his discretion, and concluded that the obvious prejudice to the claimants that would result if he did not extend time outweighed any prejudice that the defendant would suffer if he did extend time. For these reasons, he allowed the appeal.

For the reasons expressed earlier in this judgment, the judge construed CPR 7.6(3)(a) correctly. Mr Gaunt has criticised the conduct of the claimants’ solicitors, and submitted that the real cause of the problem was their assumption that the court would have served the claim form, although they did not receive a notice under CPR 6.10 or 6.14(1). But the defendant was only given permission to appeal on the point of construction, and not the judge’s exercise of discretion. In any event, we should say that we see no basis on which the exercise of discretion could be challenged. In our judgment, this was a case where the real cause of the failure to serve in time was the court’s neglect. That conclusion is not undermined by the fact that it is possible to argue that the claimants’ solicitors were at fault in failing to appreciate that there might be a problem, and in failing to ascertain the position before the time for service had expired.

We therefore dismiss this appeal.

Mr Claussen was injured in a road accident on 7 October 1996. He instructed solicitors, Messrs Traymans, on 29 October. Liability has never been seriously in issue, and the defendant’s insurers have made a voluntary interim payment of damages in respect of the value of the claimant’s moped. Finalisation of the claimant’s case on quantum was delayed because his recovery was protracted, and the prognosis was not clear. The defendant’s insurers were kept informed by the claimant’s solicitors about the progress of the claim. On 29 July 1999, Traymans sent a number of reports and documents to the insurers, and made a Part 36 offer. The insurers replied on 6 August that they wished to have their own medical examination of the claimant, and an appointment was made for 23 September. On 24 August, Mr Mutti (the partner at Traymans dealing with the case on behalf of the claimant) wrote asking whether the insurers would nominate solicitors to accept service. By letter dated 27 August, the insurers nominated A E Wyeth and Co (“Wyeth”), but did not provide their address.

On 30 September, Traymans notified the insurers that proceedings would be issued, and said that there would then be 4 months in which to resolve the matter before it became necessary to serve particulars of claim. A draft claim form was then prepared for issue, and a trainee solicitor took it to the Central London County Court on 5 October 1999. She had been instructed by Mr Mutti to retrieve the claim form after it had been issued, so that it could be served by Traymans. The claim form, which was issued on 5 October, gave the defendant’s address as “Stephen Michael Yeates c/o A E Wyeth & Co, solicitors, DX 31904, Dartford”. In view of the address “c/o Wyeth”, the court official took the view that the court should serve the claim form, and that a letter from Wyeth would be needed confirming that they would accept service. The trainee solicitor was, however, given a sealed copy of the claim form by the court.

On 5 October, Mr Mutti wrote to Wyeth at their Dartford address, saying “Proceedings were issued on the 5^th October 1999, but we do not propose to serve them at present, as we anticipate that this matter is likely to settle”. Wyeth replied on 20 October stating that service would be accepted at their London office, and asking for a copy of the sealed summons in “confirmation of the commencement of the proceedings.” At the request of Wyeth, on 9 November Traymans sent them at that address a copy of the claim form as issued. On 15 November, Wyeth wrote asking Traymans to “ensure that when service is effected and if you intend to ask us to accept service on the defendant’s behalf, the appropriate documentation is sent to this firm’s London office.”

Thereafter, little happened until a date (which the judge was prepared to assume was 1 February 2000) when a letter was sent by Traymans to the court addressed to the Court Manager with the correct title and number of the action. It stated:

“Please find enclosed Notice of Issue of Legal Aid Certificate, Particulars of Claim and Claimant’s Schedule of Loss in respect of this case which was issued in October of last year.

Could you please place a copy on your file and serve the Defendant via his solicitors in due course. We attach a copy of a letter from the Defendant’s solicitors confirming that they will accept service.”

This was the first time that Traymans had provided the court with the confirmation that it had sought on 5 October 1999 that Wyeth would accept service. The last date for service was 5 February. Traymans also wrote on 1 February to Wyeth saying that they had lodged the documents with the court which “no doubt will serve these in due course”, and enclosing copies. Nothing happened until 4 April when Traymans tried to find out the position, and learnt that Wyeth had not heard from the court. Mr Mutti telephoned the court, and was told that the matter had been “put on hold awaiting a letter confirming that Wyeth would accept service”. Mr Mutti pointed out that such a letter had been enclosed with his letter of 1 February. The member of the court staff confirmed that this was shown on the computer record. The file and letters of 1 February and 5 April (in which Traymans said that the time for service had passed) were placed before District Judge Langley, who on 18 April made an order that the time for service of the claim form, particulars of claim and response pack be extended to 26 May.

On 19 June, Traymans wrote to the court and to Wyeth to find out whether the claim form had been served. On learning that it had not been served, they wrote to the district judge expressing their concern, and asking her to look into the matter urgently. On 29 June, she ordered that the time for service be extended to 31 July 2000.

On 2 August, Wyeth issued an application that the orders dated 18 April and 29 June be set aside, and that the claim form and the purported service of it be set aside. On 21 September, District Judge Haselgrove acceded to this application. The claimant appealed to the judge. In a reserved judgment given on 9 May 2001, His Honour Judge Butter QC dismissed the appeal.

Before the judge, it was common ground between the parties that, in the light of Vinos, there was no residual discretion to extend time or to cure procedural irregularities. Accordingly, the claimant had to bring himself within CPR 7.6(3) in order to obtain an extension of time. There was no application to dispense with service. The central parts of the judgment are these:

“12.

The Defendant contended that upon a proper construction of (3)(a) it was necessary for the Court to have attempted to serve but been unable to do so, that in the present case the Court had done nothing because it was waiting for information which it had made plain that it required, that in any event Traymans could themselves have served the claim form, that although arguably the responsibility for service lay with the Court after 1 February 2000 the Court was given less than 4 days to do so, and that it could not fairly be said that the claimant had taken all reasonable steps to serve the form.

13.

The following additional matters may be noted. Traymans were entitled to insist that they would serve the claim form. They must have been aware that there was no question of the Court serving it without the confirmation which the Court required. Their trainee solicitor was given a sealed copy of the form on 5 October 1999 and a copy of this was in fact sent by Traymans to Wyeth on 9 November though, in the light of the contemporaneous correspondence, Counsel for the Claimant has not sought to argue that this constituted service. (Particulars of Claim would have had to be served within 14 days unless time was extended). On 1 February 2000, Traymans’ letter to the Court did not refer to the fact that the claim form had not been served and did not convey any sense of urgency. The Court receives many thousands of letters and other documents every week and it is entirely unrealistic to assume that the court will almost immediately effect service. There is no evidence as to what consideration was given to the documents handed in on 1 February but the position is that it would not have been appropriate for the court to serve the form after 5 February as time had not been extended. Although the Claimant’s representatives seek to rely upon the fact that no notice of non-service was sent by the Court (under CPR 6.11), it should be borne in mind that where service is effected, the Court will send out a certificate of service under 6.14 in relation to this claim form, and notification of receipt of an acknowledgment of service in relation to the particulars of claim under 10.4. In the present case no step appears to have been taken by Traymans between 1 February and 4 April 2000. No application was at any stage issued in accordance with 7.6 (4) and P.D. 7.8, despite the requirement among other things of the need for evidence, though it may be that District Judge Langley was or would have been entitled to dispense with the filing of an application notice pursuant to 23.3(2).

14.

In overall terms, District Judge Haselgrove accepted the submissions of the Defendant summarised in paragraph 12 of this judgment. I consider that he was right to accept them. The natural interpretation of 7.6(3)(a) is that the Court has attempted to serve the claim form but has been unable to do so. If support for this view is needed, it is to be found in the wording of 6.11 which requires this Court if unable to serve to “state the method attempted”. Whatever sympathy one may have for the Claimant, the interpretation put forward by his Counsel involves an unnaturally strained interpretation upon the wording of the rule. The Claimant therefore fails in respect of 7.6.(3)(a). District Judge Haselgrove was in my view also correct in concluding that the Claimant did not satisfy the requirements of (3)(b) where the emphasis is on the Claimant as distinct from the Court. Here the Claimant took no step at all after 5 October 1999 to serve the claim form and I do not see that he can come within 3(b) by saying that he handed documents to the Court on 1 February 2000. It is unnecessary for me to decide the point but I should say that I have considerable reservations as to whether the claimant can be said to have complied with (3) (c) and (4).”

For the reasons that we have already given, the judge misinterpreted CPR 7.6(3)(a). It was open to him to extend the time for service if he considered that court neglect was the real cause of the failure to serve the claim form in time, and that, applying the overriding objective, an extension of time was appropriate in all the circumstances. Since the judge did not exercise his discretion under CPR 7.6(3)(a), it is necessary for us to do so now.

In our view, it was failures by Traymans that were the real reason why the claim form was not served within the 4 month period in this case. They knew that the court would not serve the claim form until it received a letter from Wyeth confirming that they would accept service. Mr Mutti received such a letter early during the 4 month period. No explanation has been given as to why that letter was not sent to the court until 1 February. If it had been sent shortly after it had been received by Traymans in October 1999, there is no reason to suppose that the court would not have effected service long before 5 February 2000. Nor does Mr Mutti explain why, having waited until 1 February to send the letter from Wyeth, he wrote to the court asking them to serve the defendant “in due course”. He should have impressed on the court the urgency of the situation (which was entirely of his own making), and asked it to make sure that the claim form was served by 5 February. We would agree with the comment of the judge that, since the court receives many thousands of letters every week, “it is entirely unrealistic to assume that the court will almost immediately effect service”. In these circumstances, we do not consider that the conduct of the court was the real reason why the claim form was not served in time. We do not, therefore, think that this is a case in which it would be right to extend time for service under CPR 7.6(3)(a).

Mr Asif submits in the alternative that we should make an order under CPR 6.9 dispensing with service. He says that the case is analogous to the category 2 cases recognised in Anderton. He relies in particular on the fact that on 9 November 1999, Traymans sent a copy of the claim form as issued to Wyeth. Thus a copy was sent by a permitted method of service to the person authorised to accept service at the address given for service. He submits, therefore, that the case falls within the scope of the category 2 cases identified at para 58 of the judgment in Anderton, and that, since this is a pre-Anderton case, it is one in which it is appropriate in principle to make an order under CPR 6.9. We cannot accept this submission. In the two cases which succeeded in Anderton, what was sent was the original claim form that had been issued by the court, and it was clear that the claim forms were purportedly being served, albeit that they were deemed to be served out of time. The recipient knew that, on the assumption that what was sent amounted to valid service, time started to run from the date of service of the claim form for certain purposes. Thus, for example, unless the claim form stated that particulars of claim were to follow, the time for acknowledgement of service was 14 days after service of the claim form: see CPR 10.3(1)(b).

But in the present case, Traymans did not purport to serve the claim form by sending the copy to Wyeth on 9 November. There was no question of time starting to run from the date of service of that copy. On the contrary, Traymans made it clear that they were not proposing to serve the claim form on 9 November, and this was well understood by Wyeth (see their letter of 15 November.) Traymans knew that they would eventually be asking the court to serve the claim form in due course, and that is precisely what they asked the court to do on 1 February. Nor did Traymans purport to serve the claim form on 1 February 2000. By their letter of that date, they made it clear that the claim form would be served by the court “in due course” i.e. at some unspecified future date. In our view, this case does not fall within the exceptional category of cases identified in para 58 of the judgment in Anderton. It would be quite inappropriate to make an order dispensing with service here.

For these reasons, the appeal is dismissed.

The claimant suffered substantial injuries on 26 February 1998 when the defendant’s car mounted the pavement and collided with her. Shortly thereafter, the claimant instructed solicitors, Messrs Ronald Prior & Co (“Priors”). On 14 May 1998, Priors wrote to the defendant’s insurers, KGM Motor Policies at Lloyds (“KGM”) inviting them to admit liability. On 2 June, KGM replied confirming that “for the purposes of negotiations liability is not in dispute”. During the following two years, negotiations proceeded, and the insurers made a modest interim payment, and met various expenses that were incurred by the claimant. But no final settlement was reached.

The limitation period was due to expire on 26 February 2001. Priors issued a claim form (without particulars of claim or accompanying documents) on 19 February 2001. They requested that the service copy be remitted to them for service, and this was done. The last day for service of the claim form was, therefore, Tuesday 19 June. On Friday 15 June, Priors sent KGM “by way of service” an unsigned and unsealed copy of the claim form together with particulars of claim and a schedule of losses. These documents were received by KGM on 18 June. In their letter dated 15 June which enclosed the documents, Prior wrote: “The writer has left the sealed Claim Form at home, as he was working on this case last night. We therefore enclose copy Claim Form, and will fax the sealed version on Monday”. In fact, what they sent was not a copy of the claim form that had been issued, but a draft claim form. By CPR 6.4(1), the claim form and particulars of claim should have been served on the defendant personally: no solicitor had been authorised to accept service so as to bring CPR 6.4(2) into play, and there had been no prior agreement between the parties that service would be effected on KGM. By letter dated 22 June, KGM informed Priors that they “would like you to serve our insured direct”. On 25 June, Priors purported to effect personal service of all the papers on the defendant at her home address.

KGM instructed solicitors on behalf of the defendant. On 3 July 2001, they wrote to Priors pointing out that they had not indicated that they were willing to accept service, and that the defendant should have been served personally. No further steps were taken in the proceedings until the defendant’s solicitors issued an application on 21 February 2002 to strike out the claim on the grounds that proper service of the proceedings had never been effected on the defendant. The application was heard by District Judge Gregory on 26 June. It was conceded on behalf of the claimant that there had not been proper service. Counsel appearing for the claimant sought to rely on an alleged agreement that the defendant would meet the claim and that he was thereby estopped from seeking the protection of the CPR to avoid liability. In a reserved judgment given on 9 July, this submission was rejected by the district judge. Since no other argument had been put forward on behalf of the claimant, the district judge felt constrained to accede to the defendant’s application and strike out the claim. As he saw it, the claimant had not complied with CPR 7.5, and, in view of Vinos and Elmes, had little or no prospect of obtaining an extension of time under CPR 7.6. The attention of the district judge was not drawn to CPR 6.9 at the date of the hearing (which pre-dated Anderton), and no application was made to him for an order to dispense with service. The district judge refused permission to appeal. He was not made aware of the decision in Anderton. On 31 July, His Honour Judge Bradbury granted permission to appeal limited to the issue of whether the district judge should have considered CPR 6.9 and exercised his discretion to dispense with service of the claim form. It is evident that, in giving permission to appeal, the judge was heavily influenced by Anderton.

On 28 October 2002, His Honour Judge Hornby allowed the claimant’s appeal. The appeal proceeded as if the district judge had held that he had no jurisdiction to dispense with service under CPR 6.9, so that it was appropriate for the judge to decide whether to dispense with service for himself. The judge cited extensively from Anderton, and referred in particular to paras 57 and 58 of the judgment. We should set out the whole of his conclusion:

“In the light of Anderton it is clear in my judgment that the court has a discretion to exercise which can be exercised retrospectively in exceptional circumstances without undermining the principle in Godwin’s case. Plainly, the exercise of such discretion must have regard to the overriding principles of Part 1. In the instant case the arguments seem to me to be finely balanced. On the one hand it is said that by serving the Defendant’s insurers the Claimant does not fall within the exception described in paragraph 58. The Claimant knew the Defendant’s name and address, that she or her solicitors should be served within the four month period. No applications were made under CPR r. 7.6, 6.8 or 6.9. The Claimants were risking disaster by serving on the last day. The Defendants would be wrongfully deprived of the Limitation Act. On the other hand, the Defendant’s insurers were aware of the claim within three months as contrasted by the facts in Anderton and had admitted liability eighteen days later. They looked after the Defendant’s interests throughout and were in substantial pro-active negotiations. Medical reports had been disclosed and offers of settlement made. It was submitted that to draw a distinction between the Defendant’s insurers and her legal advisers was a technical point devoid of merit when the Defendant’s interests were fully protected by her insurers throughout. Moreover, applying the principles of CPR Part 1, if the claim were to be struck out the Claimant, whose claim was substantial, was not guaranteed success against her first solicitors. She would be proceeding against a party who had formerly represented her. There was likely to be considerable delay overall and much extra expense. The added complexities caused by the different nature of the claim were a factor and a re-allocation of further court resources to new proceedings should be borne in mind. I remind myself that the District Judge impliedly indicated that if he had had a discretion he would probably have exercised it in favour of the Claimant in all the circumstances. I have weighed up carefully the rival arguments which I have outlined briefly above. Both counsel put their arguments admirably. After careful consideration and reminding myself of the way the Court of Appeal considered the cases of Chambers and Dorgan in Anderton I am persuaded that the balance just tips in favour of the Claimant and that my discretion should therefore be exercised in favour of the Claimant for the reasons advanced by Mr Yell and set out fully in this judgment. Accordingly, this appeal shall be allowed.”

In our judgment, the judge should not have made an order under CPR 6.9 in this case. He took too liberal a view of the scope of the discretion conferred on the court by the rule. He did not pay sufficient regard to the fact that, even in category 2 cases (of which this is an example), the discretion may be exercised only in exceptional circumstances, and the court should be very slow indeed to dispense with service retrospectively in circumstances which fall outside those mentioned in para 58 of the judgment in Anderton to which we have referred at para 9 above.

The circumstances of the present case fell outside the scope of para 58 of Anderton in a number of respects. First, what was purportedly served was not the claim form issued by the court or a photocopy of that document, but a draft claim form. Thus, unlike the document issued by the court, it was not stamped with the court seal, and it did not contain a statement of truth. CPR 7.5 provides that, after a claim form has been issued, “it must be served on the defendant” (emphasis added).

Secondly, Priors made it clear to KGM that they understood that they were not serving the claim form, because they said that they would fax it on 18 June. Thirdly, the draft claim form was not sent to the defendant or a solicitor authorised to accept service on behalf of the defendant as permitted by CPR 6.4. It was sent to the defendant’s insurers, who had no authority to accept service on behalf of the defendant. This is not a mere technical point. Mr Ross QC makes the point that in Anderton, the court referred to the fact that the claim form had in fact been received by the defendant or “his legal adviser” by a permitted method of service as critical to whether the circumstances were exceptional so as to bring the CPR 6.9 power into play after the time for service has expired. He submits that the term “legal adviser” (which does not appear in the CPR) must have been deliberately chosen in preference to the terms “legal representative” or “solicitor” (which do appear), and must have been intended to include, for example, insurers who are conducting the defence as KGM were in the present case. We do not agree. In Anderton, the court referred three times to the receipt of a claim form “by a permitted method of service”. In our view, when using the term “legal adviser”, the court was clearly referring to a solicitor, since personal service on a defendant under the CPR is only permitted if it is effected on the defendant, or on a solicitor authorised to accept service: see CPR 6.4 and 6.5. We note that at para 3 of the judgment in Anderton, the court spoke of the claim form having been received by, and come to the attention of “the defendant or his solicitor”. It is clear that the terms “legal adviser” and “solicitor” were used interchangeably. In any case, we do not think that an insurer, whose interest does not necessarily coincide with that of the insured defendant, can properly be described as the defendant’s legal adviser, even where no solicitor has been appointed to act on his behalf.

Thirdly, the draft claim form was not sent to an address given for service in accordance with CPR 6.5.

We do not rule out the possibility that the power to dispense with service of the claim form should be exercised in circumstances which do not fall squarely within those described in Anderton: see further discussion at paras 87 and 88 below. But wherever the boundary for the exercise of this exceptional jurisdiction is to be drawn, we have no doubt that it should not be exercised in a case such as this. There were significant departures from the rules as to the permitted mode of service. They were not mere technicalities.

For these reasons, we would allow this appeal.

The claimant suffered personal injuries as the result of an accident at work on 22 November 1998. He was employed by the defendant as a part-time shelf stacker, and was injured when the bottom of a ladder that he was descending slipped from under him. He instructed Messrs Horwich Farrelly (“Horwich”) to act as his solicitors soon after the accident. On 28 May 1999, Horwich wrote to the defendant’s insurers asking them to “confirm details of solicitors nominated to accept service of proceedings on behalf of your insured”. On 2 June 1999, the defendant’s insurers replied saying that their enquiries into liability were continuing, but that if Horwich wanted to issue proceedings at this stage, their solicitors, Messrs Branton Edwards (“Branton”), would accept service. On 9 June, Branton wrote to Horwich confirming that they had instructions to accept service, asking for an advance copy of the claimant’s medical report, and suggesting the possibility of a jointly instructed expert.

Thereafter, Horwich continued to prepare the claimant’s claim. On 21 November 2001 (one day before the expiry of the limitation period), the claim form was issued. On 15 March 2002, Horwich purported to serve the claim form by first class post together with particulars of claim, schedule of damages and medical reports. This was done by serving the defendant at its registered office. The accompanying letter recited the fact that Horwich had been in correspondence with the defendant’s insurers and Branton, and continued: “we would respectfully suggest that the enclosed documentation be forwarded immediately” to Branton. On the same day, Horwich sent to Branton by first class post copies of all the documents that were purportedly served on the defendant, including a copy of the claim form that had been issued by the court. The accompanying letter informed Branton that the documents had been “served today on your client’s registered office.”

Although the defendant apparently did forward the original documents to Branton, they had not been received by that firm by 26 March when Branton wrote to Horwich stating that the purported service was defective because it should have been effected on them, and not on the defendant. On 3 April 2002, Branton issued an application to set aside the purported service of the claim form on the grounds that it was not in accordance with CPR 6.5. There was no cross-application to dispense with service under CPR 6.9, and no evidence was filed on behalf of the claimant. In a judgment given on 7 May 2002, Deputy District Judge Hugman acceded to the defendant’s application, and ordered that service be set aside. The district judge referred to Godwin and Nanglegan, and held that the only question before him was whether there had been service on Branton on or before 21 March. Service on the defendant itself would not suffice. He concluded that service had been effected on the defendant at its registered office, and that the sending of “courtesy” copies of the documents to Branton on 15 March or some subsequent date prior to 26 March did not amount to service on Branton.

In view of Godwin and Nanglegan, counsel for the claimant did not seek to persuade the district judge to extend the time for service retrospectively. Despite the absence of an application, the district judge considered whether to dispense with service. He said, however, that this was an “ordinary case, where the service of a claim form is something which is physically achieved”. To dispense with service would “fly in the face of the Court of Appeal’s views”. He refused, therefore, to dispense with service.

The claimant appealed with the permission of His Honour Judge Holman. The appeal was heard by His Honour Judge Armitage QC who gave a reserved judgment on 13 October 2002. The claimant applied for permission to adduce evidence before the judge. This evidence comprised a statement by David Spencer dated 20 May 2002 to which was appended a number of documents which showed some important aspects of the procedural history. Mr Spencer is a solicitor with Horwich who has had the conduct of this litigation on behalf of the claimant.

Before the judge, the claimant did not challenge the decisions by the district judge that (a) the claim form had been served on the defendant, and (b) the sending of “courtesy” copies on Branton did not amount to service on the solicitors. As regards CPR 6.9, the judge said that on the material available to the district judge, and in the light of the law as it stood at the time, the decision not to dispense with service was clearly correct. In the light of Anderton, however, an issue arose as to whether the decision under CPR 6.9 was correct.

The judge first had to decide whether to admit the evidence of Mr Spencer. He approached this question by applying the principles in Ladd v Marshall [1954] 1 WLR 1489. He said that he found the failure to adduce any evidence on behalf of the claimant before the district judge “difficult to understand”. He concluded that it had not been demonstrated that the evidence could not have been obtained with reasonable diligence. He decided not to admit the evidence.

The judge then addressed the various points made by Mr Halliday, counsel then appearing on behalf of the claimant, in support of the submission that service should be dispensed with under CPR 6.9. He rejected the submission that he should infer that the claimant had a strong case on liability. A point was made based on the fact that an expert plastic surgeon had been jointly instructed by the parties in 1999. The judge considered that this was “not the same as negotiations to settle or upon quantification, subject to liability or after admission, but does indicate a significant awareness of the likely issues on damages”. The third point relied on by Mr Halliday was that there had been an interim payment and a substantial offer in relation to liability. This was demonstrated by the evidence of Mr Spencer, but, having refused to admit this evidence, the judge refused to take it into account. The fourth point made by Mr Halliday was that the solicitors had been instructed on behalf of the defendant 30 months before service was effected. The judge dismissed this as a “thoroughly bad point”. The problems arose because the claimant’s solicitors left service until the last moment, and then failed to look at their file to see upon whom service was to be effected.

The judge took the next two points together. These were that the defendant and its solicitors were aware of the contents of the claim form and the other documents before the date for service had expired. As to this, the judge said:

“On any view both the defendants and their solicitors had actual knowledge of the existence and content of the claim form within a few days of the deadline for service, possibly before, but possibly after it. Albeit not good service the defendants and their insurer’s solicitors had actual knowledge of the claim and its content.”

The remaining substantive points went to the question of where the balance of prejudice lay. The judge said:

“In my judgment that balance comes down heavily in favour of allowing the action to proceed. The defendants will suffer the prejudice of losing a cast iron defence to a claim of which they had fair and timely notice. Service was procedurally ineffective, but was not demonstrably actually ineffective. The defendant’s ability to contest the claim (on liability and quantum) on its merits, is unaffected by the claimant’s decision to proceed at the very last moment. There is no evidence to suggest that that decision was made on tactical grounds, that is to say with the intention of causing problems for the defendants in their defence to the claim.”

At para 30, the judge summarised his conclusion in these terms:

“30.

In my judgment the circumstances are exceptional. This was a technical error. It was easily avoidable, but has no more than technical consequences for the defendants compared with potentially very grave consequences for the claimant. Any relevant delay was insignificant. The claimant and/or his solicitors have not performed their obligations under the rules as to time, as to service or in this appeal with any great credit. They have been fortunate in what may be seen as the merciful decision of the Court of Appeal in Anderton. Although not wrong at the time it was made, I allow the claimant’s appeal against the district judge’s order on the basis that the decision was wrong having regard to the subsequent declaration of the court’s powers concerning dispensing with service of a claim form, by the Court of Appeal in Anderton.”

Accordingly, he allowed the claimant’s appeal.

Permission to appeal to this court was given on the question whether in a pre-Anderton case, the category of “exceptional” cases where service may be dispensed with retrospectively under CPR 6.9 is restricted to cases where there has been an unsuccessful attempt to serve at the address for service.

But we need first to deal with the point raised by Waller LJ during the course of argument that the sending of the claim form by first class post to the defendant’s registered office on 15 March constituted good service pursuant to section 725(1) of the 1985 Act, such that there was no need to invoke CPR 6.9 at all. Mr Tozzi QC adopted this as part of his submissions. Mr Purchas protested that it had been conceded below that there had not been service on the defendant in accordance with CPR 6.5, and the suggestion that service had been effected under section 725(1) had not been raised, and that it was too late for the point to be taken now. But we decided that it would be unsatisfactory to determine this appeal on a false basis. Any prejudice caused to the defendant by the fact that the point was taken so late could be met by an appropriate order for costs, and giving the defendant time to submit further submissions in writing on the new point. Since the end of the hearing we have received written submissions from both parties on the point.

Mr Tozzi submits as follows. Section 725(1) of the 1985 Act provides:

“A document may be served on a company by leaving it at, or sending it by post to, the company’s registered office”.

Section 7 of the Interpretation Act 1978 Act provides:

“Where an Act authorises or requires any document to be served by post … 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.”

CPR 6.2(1) provides 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”. CPR 6.2(1) provides the methods by which service may be effected, viz by personal service in accordance with CPR 6.4, by first class post, by leaving the document at a place specified in CPR 6.5, through a document exchange, or by fax or other electronic communication. CPR 6.2(2) provides:

“(2)

A company may be served by any method permitted under this Part as an alternative to the methods of service set out in –

(a)

section 725 of the Companies Act 1985 (service by leaving a document at or posting it to an authorised place);

(b)

section 695 of that Act (service on overseas companies); and

(c)

section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain).

CPR 6.4 contains the following provisions relating to personal service:

“(1)

A document to be served may be served personally, except as provided in paragraph (2).

(2)

Where a solicitor –

(a)

is authorised to accept service on behalf of a party; and

(b)

has notified the party serving the document in writing that he is so authorised,

a document must be served on the solicitor, unless personal service is required by an enactment, rule, practice direction or court order.

(3)

A document is served personally on an individual by leaving it with that individual.

(4)

A document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation.”

CPR 6.5 deals with the address for service. CPR 6.5(2) requires a party to give an address for service within the jurisdiction. CPR 6.5(4) provides that “any document to be served (a) by first class post…..must be sent or transmitted to, or left at, the address given by the party to be served”. CPR 6.5(6) provides that where “(a) no solicitor is acting for the party to be served; and (b) the party has not given an address for service, the document must be sent or transmitted to, or left at, the place shown in the following table”. The table shows the place for service according to the nature of the party to be served. It includes as the place for service of a company registered in England and Wales either the “principal office of the company” or “any place of business of the company within the jurisdiction which has a real connection with the claim”.

In this case, service was effected using the statutory procedure. Mr Tozzi submits that the fact that service by post pursuant to the 1985 Act overlaps with service by first class post under CPR 6.2(1)(b) is immaterial. Service by first class post is a permitted method of service. Accordingly, service on the company at its registered office was good service. The case of Nanglegan can be distinguished, since the defendant in that case was not a company. Alternatively it was wrongly decided.

The submissions on behalf of the defendant may be summarised as follows. A defendant company may be served under section 725(1) of the 1985 Act, under the CPR or in such other way as may be agreed between the parties: see Kenneth Allison Ltd v AE Limehouse Ltd [1992] 2 AC 105, per Lord Bridge at p 116H-117A, with whom Lords Lowry, Templeman and Jauncey agreed. Lord Bridge said:

“I do not see any difficulty in holding that the kind of ad hoc agreement in question is legally effective. If one party, knowing that another wishes to serve process upon him, requests or authorises the other to do so in a particular way which is outside the Rules and the other does so, then, unless the Rules themselves prohibit consensual service, the party so served cannot be heard to say that the service was not valid. Thus, I have no doubt that, if the circumstances of the present case had come before the court in 1898, the validity of the service would have been affirmed. The crucial question is whether subsequent changes in the Rules of the Supreme Court have introduced just such a prohibition of consensual service outside the Rules as was unsuccessfully contended for in Montgomery, Jones & Co v Liebenthal & Co [1898] 1 QB 487.”

This presupposes that CPR 6.2(2) and section 725(1) provide alternative, and not concurrent, methods of service. Where a choice or election is made as to the method of service to be employed, then both parties are bound by it. Once the CPR is engaged by an effective election, the parties know when the court timetable will start to run, because the claimant will have served a certificate of service specifying the deemed date of service. In this way, certainty is achieved. On the facts of the present case, the claimant by his solicitors elected to proceed by way of service on the defendant’s solicitors under the CPR, rather than under section 725(1). At no time prior did the claimant seek to resile from the election. The defendant also relies on Nanglegan.

Our conclusion on this issue is as follows. A claimant may serve the claim form on a defendant company either by leaving it at, or by sending it by post to, the company’s registered office, or by serving it in accordance with one of the methods permitted by the CPR. They are true alternatives. That is made clear by CPR 6.2(2). There are differences between the two methods. For example, service under section 725(1) may be by second class post. CPR 6(1) provides for service by first class post. Service under section 725(1) is deemed to have been effected at the time at which the letter would be delivered “in the ordinary course of post” (section 7 of the Interpretation Act) unless the contrary is proved. CPR 6.7 provides that, where service is by first class post, the document is irrebuttably deemed to have been served on the second day after it was posted. Another difference is that service under section 725(1) must be by leaving the document at, or posting it to, the registered office. CPR 6.2(1) provides for five permitted methods of service.

If a defendant has not given an address for service, a claimant may choose whether to follow the section 725(1) or the CPR route for service. In Nanglegan, it was held that, where a defendant elects to give his address for service, and nominates his solicitor to accept service, CPR 6.5(4) requires personal service to be effected upon the nominated solicitor, and not on the defendant. As Thorpe LJ put it (p 1047F) “there will be many cases in which a defendant does not want service either at his residence or at his place of business”. But in that case, the court was not concerned with the interplay between section 725(1) and the CPR, which expressly recognise alternative methods.

We accept that it is possible for the parties to make a binding contract whereby the claimant agrees to serve the claim form by the CPR route rather than under section 725(1) or vice versa. But we do not consider that the effect of the letters dated 28 May, 2 and 9 June 1999 was to deny to the claimant the option of serving under section 725(1) of the 1985 Act. In our judgment, the true effect of these letters was not a binding promise by the claimant to serve on the solicitors under CPR 6.4(2). Rather, it was that the parties agreed that, if the claimant decided to effect personal service under CPR 6.4, then they would serve on the defendant’s solicitors rather than on the company under CPR 6.4(4). Allison v Limehouse is authority for the proposition that an ad hoc agreement for service not permitted by the rules is legally effective. We do not consider that it assists in the resolution of the issue which arises here.

Our conclusion, therefore, is that the service on the company’s registered office by first class post on 15 March 2002 was good service.

In these circumstances, it is not necessary to decide whether the judge was right to dispense with service under CPR 6.9. However, in view of the importance of giving some guidance as to the scope of CPR 6.9 in cases such as this, we shall express our opinion on this issue on the footing that (contrary to the view just expressed) service should have been on the defendant’s solicitors under CPR 6.4(2). In our judgment, on that hypothesis, the circumstances identified by the judge did not make this an “exceptional” case within the letter or the spirit of Anderton and Wilkey. But we wish to emphasise the following features. It is clear that a copy of the claim form as issued was sent to Branton on 15 March 2002. In other words, a copy of the right document was sent to the right person at the right address and, if CPR 6.7 applied, it was deemed to have been served before the expiry of the 4 month period. Moreover, Branton were informed by Horwich that the original documents had been served on the defendant’s registered office that same day. The only flaw in the process was that Horwich sent a copy of the issued claim form, rather than the original document itself. In this regard, it is to be noted that, if Horwich had sent the issued claim form to Branton by fax, that would have been good service. A document received by fax is a copy document. The circumstances revealed by this case do not precisely satisfy the Anderton criteria: Branton received a document served by one of the permitted methods of service (ie by first class post on the right person at the right address), but it was a copy of the document that should have been served.

In these very unusual circumstances, had it been necessary to do so, we would have decided that it was right to dispense with service under CPR 6.9. It is possible that the relationship between service under section 725(1) and service under the CPR was not fully understood, and that the importance of serving on the party to be served the original claim form that has been issued (rather than a copy) was not appreciated. But in future the significance of these points will have to be taken into account. Errors of this kind will generally not be regarded as good reasons for making an order under CPR 6.9. In stipulating a strict approach for the future in such circumstances, we have been guided by what was said in Anderton and Wilkey.

But for the reasons that we have given, this appeal is dismissed.

The claimant was injured in a road traffic accident on 18 December 1997. It seems that he was driving the car of his mother, Mrs E Smith. They both instructed the same firm of solicitors, Messrs Graham Leigh Pfeffer & Co (“GLP”). In his statement dated 30 September 2002, Ian Wolstenholme, a legal executive employed by GLP, explains that the insurance position of Mr Hughes was somewhat uncertain. By a letter dated 30 March 1998, Budget Insurance Services (“Budget”) said that Mr Hughes was not insured. Thereupon, GLP intimated a claim to the Motor Insurers Bureau (“MIB”), and entered into correspondence with London & Edinburgh Insurance Co (“L&E”) who were agents for the MIB.

In April 1999, enquiry agents instructed by the MIB reported that Mr Hughes had left the address shown on the electoral register in about February 1999, and that his then current whereabouts were unknown. That address was 45 Whitworth Close, Birchwood, Warrington, Cheshire. On 19 May 1999, GLP wrote to the MIB, sending a completed application form, which, it is assumed, was an application form for an MIB agreement to be put in place in connection with this claim. On 25 May, the MIB wrote to GLP a letter in respect of the claim by Mrs E Smith, saying that the enquiry agent had established that Mr Hughes had left his address in about February, adding that (a) they were awaiting confirmation from the police whether a formal accident report was “available to clarify the insurance position and liability”; and (b) “your client” (ie Mrs Smith) had not provided any description of the circumstances of the accident which would be required before any consideration could be given to the claim.

The insurance position remained uncertain. But in about November 1999, Budget confirmed that Mr Hughes was not insured, and the Norwich Union, having merged with L&E, took over the conduct of the case on behalf of the MIB.

The claim form was issued on 14 December 2000. So far as GLP were concerned, they continued to receive contradictory signals from Budget and the Norwich Union, and the insurance position remained unclear. On 10 April 2001, the claim form, particulars of claim and all relevant associated documentation were sent by first class post to Mr Hughes at 45 Whitworth Close, Birchwood, Warrington, Cheshire. The documents were not returned by the Post Office to GLP. On 15 August 2001, the MIB was joined as second defendant. On 21 August 2002, MIB made an application requesting that the court decide as a preliminary issue whether the MIB could have any liability to the claimant. The basis of the application was its contention that the claim form had not been served on Mr Hughes within the 4 month period for service.

The application was heard by District Judge Duerden, who gave judgment on 3 December 2002. He decided that the claim form had not been served on Mr Hughes on 12 April 2001, and dismissed the claim against both defendants. One of the issues of fact that he had to resolve was whether a letter similar to that sent by the MIB to GLP on 25 May 1999 in respect of Mrs Smith’s claim had been sent by them to GLP in respect of the claimant’s claim. Mr Wolstenholme asserted at para 22(a) of his statement that the letter dated 25 May sent in respect of Mrs Smith’s claim was sent to another member of the GLP legal team, and that no similar letter was received in relation to this claim, nor was a copy of the enquiry agent’s report ever received by GLP. The district judge said (para 10) that he was satisfied on balance that there was one person, whose reference was MBT, who was dealing with both claims.

Having made that finding, the district judge turned to the question of service. He referred to CPR 6.5 (which deals with address for service), and in particular 6.5(6) which provides that, where no solicitor is acting for the party to be served, and the party has not given an address for service, if the document is to be served on an individual, it must be sent or transmitted to, or left at his or her “usual or last known residence”. There was no doubt in this case that Mr Hughes’ last known residence was the address to which the claim form was sent on 10 April 2001. It was not suggested by the MIB that there was any other subsequent known address for Mr Hughes. The district judge referred to CPR 6.8 which provides:

“6.8

– (1) Where it appears to the court that there is a good reason to authorise service by a method not permitted by these Rules, the court may make an order permitting service by an alternative method.

(2)

An application for an order permitting service by an alternative method –

(a)

must be supported by evidence;

(b)

may be made without notice.

(3)

An order permitting service by an alternative method must specify –

(a)

the method of service; and

(b)

the date when the document will be deemed to be served.”

He said that it was “reasonably incumbent” on a solicitor faced with a letter in the terms of the MIB letter dated 25 May 1999 to “contemplate” an application for service by an alternative method under CPR 6.8. The most obvious alternative method would have been by service on the MIB. GLP failed to take this course even though “they knew that sending it to the last known address of the first defendant would not result in service”. The conclusion of the district judge is encapsulated in the following passage at para 22:

“However generous a reading one makes of the rules and however persuasive the Court of Appeal’s decision in Anderton may be and I do not seek for a moment to detract from that; I do recognise it as a very useful decision in procedural matters as it accentuates the need for certainty but however persuasive that may be, to purport to serve at the last known address two years and some after the defendant has vacated it without making further inquiry cannot be doing justice between the parties. It cannot be expected that the first defendant will get to know of those proceedings and that is the purpose of service.”

In the result, he held that Mr Hughes had not been served.

On behalf of the claimant, Mr Exall submits as follows. Service on the last known residence of an individual is good service. The rules are clear and there are no grounds for construing them in any other way. Alternatively, he relies on CPR 6.10 and 6.14 and the fact that the claim form was not returned undelivered to support the presumption that service had taken place. CPR 6.14(2) provides that, where the claim form is served by the claimant, he must file a certificate of service within 7 days of service of the claim form. CPR 6.10 provides that, where a rule requires a certificate of service, the certificate must state (a) that the document has not been returned undelivered, and (b) where service is by post, the date of posting.

Mr Exall submits that the district judge should have applied the fundamental principle to be derived from Anderton, namely that the rules for service are designed to provide certainty. In CPR 6.7, this is achieved by providing rules for the time when service is deemed to be effected which are not rebuttable by evidence as to when the documents are actually received. So too in relation to the address for service, certainty is achieved by a rule which permits service on a person’s last known residence. This is a sensible pragmatic rule designed to deal with the situation which occurs where a defendant does not give an address for service as required by CPR 6.5(2). Moreover, the potential injustice to a defendant who has been served at his last known residence is, to some extent at least, mitigated by CPR 13.5(2). This provides that if a claimant who has entered judgment subsequently has good reason to believe that the particulars of claim did not reach the defendant before the claimant entered judgment, he must file a request for the judgment to be set aside, and apply to the court for directions.

In any event, Mr Exall submits that the district judge fell into error in relation to the facts of the case itself. The evidence did not establish that Mr Hughes was not living at the address in April 2001. It was not reasonable to infer from the fact that he left the address in February 1999 that he was not living there in April 2001. All the more so in view of the fact that the documents were not returned undelivered by the Post Office to GLP.

On behalf of the MIB, Mr Gregory supports the reasoning of the district judge. He submits that the district judge was entitled to hold that GLP, as solicitors to the claimant, were fixed with the knowledge of the contents of the letter of 25 May 1999. GLP cannot realistically have believed that the address 45 Whitworth Close could fairly be described as Mr Hughes’ “usual” residence, or his “last known residence”, since it was known that this was not his residence, and had not been his residence since February 1999. Accordingly, if they sent the documentation to that address on 10 April 2001, GLP did so in the knowledge that it would not be received by Mr Hughes. Mr Gregory submits that it is implicit in CPR 6.5 that there is a reasonable belief on the part of the person purporting to serve the documentation that it will come to the attention of its intended recipient at the address served. There is nothing in Anderton which compels the conclusion for which the claimant contends.

It seems that there is some doubt as to the meaning and effect of CPR 6.5(6) where service is effected on an individual at his last known residence. The notes to Volume I of the Autumn 2002 edition of Civil Procedure include the following:

“The CPR do not make it clear whether service by post to a defendant’s last known address at which he no longer resides, and the defendant does not in fact receive the claim, is good service”.

In our judgment, the position is clear. There are two conditions precedent for the operation of the provisions of CPR 6.5(6), namely that (a) no solicitor is acting for the party to be served, and (b) the party has not given an address for service. If those conditions are satisfied, then the rule states that the document to be sent must be sent or transmitted to, or left at, the place shown in the table. In the case of an individual, that means at his or her usual or last known residence. The rule is plain and unqualified. We see no basis for holding that, if the two conditions are satisfied, and the document is sent to that address, that does not amount to good service. The rule does not say that it is not good service if the defendant does not in fact receive the document. If that had been intended to be the position, the rule would have said so in terms. Nor can we see any basis for holding that, if the claimant knows or believes that the defendant is no longer living at his or her last known residence, service may not be effected by sending the claim form, or leaving it at, that address. That would be to fly in the face of the clear words of the rule. The rule is intended to provide a clear and straightforward mechanism for effecting service where the two conditions precedent to which we have referred are satisfied.

As we have said, there is no suggestion in this case that 45 Whitworth Close was not Mr Hughes’ last known residence. If the MIB had disputed the claimant’s claim that this was Mr Hughes’ last known residence, then difficult questions might have arisen. In particular, is the rule concerned with the claimant’s actual knowledge, or is it directed at the knowledge which, exercising reasonable diligence, he or she could acquire? We incline to the latter view, but, as we have said, the point does not arise on this appeal.

But for the reasons that we have given, in our judgment the district judge misinterpreted CPR 6.5(6), and the appeal must be allowed.