Weston v Bates & Anor

The First Defendant (“Mr Bates”) lives in Monaco. The question raised by Application Notices issued by Mr Bates on 18 February 2011, and by the Claimant (“Mr Weston”) on 2 June 2011 relates to whether he was (or should be treated as having been) validly served with proceedings commenced by the issue of a claim form on 30 July 2010. This is a libel action in respect of publications made in August 2009 and on 22 September and 19 October 2009. The claim form was therefore issued on the last day before the expiry of the one year limitation period in respect of the first publication. Mr Weston served the Second Defendant within the jurisdiction on 30 November 2010.

CPR Part 7.2 provides that:

“(1)

Proceedings are started when the court issues a claim form at the request of the claimant. (2) A claim form is issued on the date entered on the form by the court”.

CPR Part 7.5(2) provides that

“Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.”

Accordingly, on 22 December 2010 Master Leslie made an order upon Mr Weston’s application granting him permission to serve on Mr Bates out of the jurisdiction in Monaco “the claim form” amongst other documents.

Section IV of Part 6 is headed “SERVICE OF THE CLAIM FORM AND OTHER DOCUMENTS OUT OF THE JURISDICTION”. It includes the following:

“Scope of this Section
6.30 This Section contains rules about –
(a) service of the claim form and other documents out of the jurisdiction;
(b) when the permission of the court is required and how to obtain that permission; and
(c) the procedure for service….

Service of the claim form where the permission of the court is required
6.36 In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply….
[there then following sections on how to apply for permission and other matters]
Methods of service – general provisions

6.40

(1)

This rule contains general provisions about the method of service of a claim form or other document on a party out of the jurisdiction…

Where service is to be effected on a party out of the United Kingdom

(3)

Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served –

(a)

by any method provided for by –

(i)

rule 6.41 (service in accordance with the Service Regulation);

(ii)

rule 6.42 (service through foreign governments, judicial authorities and British Consular authorities); or

(iii)

rule 6.44 (service of claim form or other document on a State);

(b)

by any method permitted by a Civil Procedure Convention or Treaty; or

(c)

by any other method permitted by the law of the country in which it is to be served.

(4)

Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form or other document is to be served.”

Solicitors for Mr Weston chose to follow rule 6.40(3)(c). They were entitled to do that, as is not in dispute. What is in dispute is whether the manner by which they chose to do this was effective.

They took steps to serve Mr Bates in Monaco through local agents in accordance with a procedure permitted by the local law. A translation was a requirement of that procedure. Mr Collins, the solicitor for Mr Weston, sets out in his third witness statement what he did pursuant to Master Leslie’s order. He forwarded all the papers to the agent in Monaco by e-mail, and only be e-mail. Nothing was sent by post. So he did not send an original sealed claim form, or a colour copy, but only a black and white electronic copy. It seems that he in fact sent two versions of the black and white copy of the claim form. But nothing turns on the fact that the better version was not in the package left for Mr Bates to collect. A print out of the poorer copy was in the package.

Since Mr Bates was not at home when the agents attempted to serve him there, the documents were left at the Town Hall for collection. But the only version of the claim form which was included was the black and white printout of it, together with a translation, which formed part of an Exhibit to the witness statement of Mr Collins. That was the witness statement made in support of the application made to the Master. The printout shows the English court seal with the date 30 July 2010 (in black and white). It also shows the English court stamp “Defendants Copy”. By this time the document also bore on each of its two pages the red seal affixed to it by the Huissier in Monaco, and the blue seals affixed to it by the translator.

What a claim form must contain, and in what form it must be, is set out in detail in Practice Direction 7A. The only provision of the Practice Direction relating specifically to a claim form that is to be served out of the jurisdiction is para 3.5, but that does not assist on the question before the court. However, in the context of the Limitation Act 1980, and other statutes for the purpose of which the date on which proceedings are started is relevant, the Practice Direction includes the following:

“5.1

Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

5.2

The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.”

CPR Part 11 provides:

“(1)

A defendant who wishes to –

(a)

dispute the court’s jurisdiction to try the claim; or

(b)

argue that the court should not exercise its jurisdiction

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have”

Mr Bates by his Application Notice asks for an order pursuant to CPR Part 11.1 that the court has no jurisdiction to try the claim against him, or that it declines to exercise any jurisdiction which it may have. The ground identified in the witness statement of his solicitor, Mr Pepper, is that the CPR and the Order of Master Leslie permitted service of the claim form, and not a copy.

Mr Weston by his Application Notice asks the court to declare that the steps taken by him amount to valid service, or, in the alternative, for an order that the steps taken by him amount to good alternative service of the claim form, and that he have retrospective permission to serve the claim form by any alternative method, or for an extension of time.

For Mr Weston it is submitted that what was served was the claim form within the meaning of the CPR and Master Leslie’s order. Neither the CPR nor the Order requires that the claim form served be one upon which the court has put the court’s seal. In the alternative he asks for an extension of time pursuant to CPR 7.6(1) and (3). These provide:

“Extension of time for serving a claim form

7.6

(1) The claimant may apply for an order extending the period for compliance with rule 7.5...

(3)

If the claimant applies for an order to extend the time for compliance 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 failed to serve the claim form; or

(b)

the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; ....”

Mr Weston submitted that the steps already taken had clearly brought the claim to the attention of Mr Bates, as is not in dispute. So in the further alternative he asks for an order under CPR 6.15(1) or (2), alternatively CPR 6.16, which provide:

“6.15

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2)

On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

6.16

(1) The court may dispense with service of a claim form in exceptional circumstances.

(2)

An application for an order to dispense with service may be made at any time”.

Although not referred to in the witness statements or in the skeleton arguments put before Master McCloud at the hearing in June 2011, in the argument before me Mr Myerson relied on a further provision of the CPR, namely Part 3.10:

“General power of the court to rectify matters where there has been an error of procedure

3.10

Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

(a)

the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b)

the court may make an order to remedy the error.”

Master McCloud heard the two applications and ordered that Mr Bates’s application be dismissed. She declared that the court has jurisdiction. But after explaining her reasons in a careful judgment delivered on 6 December 2011, she gave permission to appeal, stating that an appeal court could reasonably take a different view (para 37 of her judgment).

She held that service was validly effected because it was effected pursuant to CPR 6.40(3), and there was no dispute that what was done was done by a method permitted by the law of Monaco. See paras 32-36 of her judgment, accepting the submission of Mr Myerson in para 5 of his skeleton argument.

Master McCloud then turned to the other points raised in argument. She expressed grave doubts as to whether, if service were effected within the jurisdiction, anything less than a sealed copy of the claim form (what she called a “first generation” copy) would suffice, save in cases where the rules specifically so provide (as they do for example, in permitting service by fax or e-mail: CPR 6.3(1)(d)). She noted at para [41] that service by fax and e-mail is permitted, but only in specified circumstances (where there is prior agreement to that method of service). That is a recognition of the difference between a second generation copy and a first generation copy.

Finally Master McCloud considered whether, if service had not been valid, the court should grant relief, whether by an extension of time, an order for alternative service or waiver of service. She considered that she had no jurisdiction to extend time under CPR Part 7.6 because Mr Weston had not taken all reasonable steps to comply with rule 7.5, as required by CPR 7.6(3)(b). And she would not have exercised her discretion in his favour in any event, because to do so would deprive Mr Bates of his limitation defence. She would not have exercised her discretion in favour of Mr Weston under CPR Part 6.15 or 6.16 because an error by solicitors (who could have obtained a fresh first generation copy over the counter from the court) is not such as to justify an order dispensing with service, or permitting retrospective service, even where, as here, it is admitted that the steps in fact taken had brought the proceedings to the notice of Mr Bates.

Solicitors for Mr Weston indicated in correspondence that he was minded to issue a Respondent’s Notice. But the parties agreed in correspondence that:

“issues relating to any challenge by [Mr Weston] to the Master’s exercise of her discretion be reserved to the judge hearing [Mr Bates]’s appeal, to be dealt with on the handing down of his or her judgment”.

That was finally confirmed in a letter dated 2 February 2012. It appears that at that stage the significance of CPR Part 3.10 had not been appreciated. CPR Part 3.10 requires a two stage enquiry. The first question is whether there has been “an error of procedure such as a failure to comply with a rule or practice direction”. The second question is whether the court should exercise the discretion to “make an order to remedy the error”.

In his skeleton argument for the appeal Mr Dean cited the case of Phillips v Nussberger at first instance ([2005] EWHC 1880 (Ch); [2006] I L Pr 9), in the Court of Appeal ([2006] EWCA Civ 654; [206] 1 WLR 2598) and in the House of Lords ([2008] UKHL 1; [2008] 1 WLR 180). He had not cited that case to the Master. It was from this case that the possible relevance of CPR Part 3.10 emerged.

Since the Master was not asked to consider rule 3.10, and since the effect of the agreement between the parties is to leave out of this stage of the appeal any consideration of the exercise of discretion, I shall proceed on the basis that, in so far as rule 3.10 is concerned, I am concerned only with the first question, whether there has been “an error of procedure such as a failure to comply with a rule or practice direction”.

What Mr Dean refers to as his central point is that Mr Bates was not served with an original sealed copy of the claim form, but only a print out of a scan of a photocopy. This would be included within what the Master referred to as “second generation” copies, since it had not physically been through the hands of the court staff. Mr Dean submits that it was a requirement that Mr Bates be served with a first generation copy. And since he was not so served, the fact that service was in accordance with the law of Monaco is immaterial. The Master erred in deciding that service in accordance with the law of Monaco was all that was required. There is a distinction between what is to be served (which is a matter of English law) and how it is to be served (which is a matter for the law of the place of service).

In Phillips the method of service in Switzerland was in accordance with the Hague Convention, and this required service through the judicial authorities of Switzerland: [2006] I L Pr 6 p177 para 58. Provisions in relation to that method of service are now contained in Part 6.40(b) and 6.43 (read with the definition in Part 6.31(c)). Part 6.43 does not apply to service in accordance with Part 6.40(c), so the judgments in Phillips must be read with that in mind.

In that case, on issue by the English court, the claim form was erroneously stamped “Not for service out of the jurisdiction”. When a Swiss official saw that, he or she removed the claim form from the bundle to be served on the second and third defendants. What was served on 19 January 2005 on the second defendant included a German translation of the claim form and the Particulars of Claim. The third defendant was not served at all due to an error by the Swiss Post Office. The question for the court was whether the English court was seised of the proceedings for the purposes of the Lugano Convention Art 21 (since the second and third defendants had by then issued proceedings in Switzerland). It is recorded at para [111] that counsel for the claimant conceded that “in the normal case” the defendant would not be in default unless served with “the original claim form”. The defendant submitted that an “original claim form” had to be served and that “the method of valid service is a matter for the contracting state under the Hague Convention, the content of the document that has to be served is a matter of English law” (para [128] and [129]. Counsel for the claimant referred to CPR Part 3.10 and submitted that a breach of the rules does not invalidate anything unless it is brought to the attention of the court and the court rules on it, and it had been brought to the attention of the court in that case (paras [132] – [133]). He said that the second defendant had been effectively served in accordance with Swiss law: para [163]. Peter Smith J granted relief to the claimant with regard to the second defendant under CPR 6.9: para [172].

In the Court of Appeal Neuberger LJ recorded at para [57] that:

“CPR6.26(2) requires a claimant to file specific documents, which include the documents included in the package in this case. CPR6.26(3) provides that, where those documents are filed, the relevant court officer will "seal the copy of the claim form" and "forward the document to the Senior Master". CPR6.26(4) requires the Senior Master to "send documents forwarded under this rule" to "the authorities designated under the Hague Convention".”

CPR6.26(3) as there set out is the same as the current CPR6.43(3).

Mr Dean relies on the part of the judgment of Neuberger LJ in which he said at para [108]:

“The provisions of the Hague Convention are concerned, at any rate primarily, with how documents are to be served, and not with what documents are to be served. That is scarcely surprising: one would expect the latter question to be determined by the domestic rules as applied by the relevant national court. In my opinion, therefore, there is considerable force in the contention that the question of whether a person who has been served, in accordance with the Convention, with court documents, needs to be served with another document in order to be properly served in accordance with the domestic procedural rules of a national court should be a matter for that court to determine by reference to those rules.”

He submits that the same must apply to service under 6.40(3)(c).

In the House of Lords Lord Brown said at para [33]:

“The question in the The Goldean Mariner, just as the question here, is whether the "attempt to serve the writ" was or was not "ineffective". It was held there to have been, not ineffective, but effective. That was not a "retrospective validation". Why should service not similarly be declared to have been effective here? The question is purely one for our domestic law, just as the question of when an English court is seised of proceedings is purely one for domestic law (and, indeed, the question of precisely what documents have to be served to achieve effective service out of the jurisdiction under the Hague Convention is purely one for domestic law).”

Mr Dean invites the court to note that there was no suggestion in that case that the fact that the second defendant has been validly served in accordance with Swiss law meant that she had been validly served for the purposes of English law. The case proceeded on the basis that an order of the English court was necessary if it was to be held that the English court was seised by the service on the defendants.

So, submits Mr Dean, the reasoning of the Master cannot be supported. The law of Monaco is relevant only to the method of service, not to what has to be served. He then turned to his submission that by English law a first generation copy was required to be served.

Mr Dean submits that the CPR refers to a copy, when service of a copy is permissible. For example Part 6.43(2)(b) (service though foreign governments including under the Hague Convention) requires the party wishing to serve the claim form to file “a copy of the claim form”, and Part 6.43(3)(a) provides that the court officer will “seal the copy of the claim form” (I note that that is the only use of the words “seal” in Section IV of Part 6).

Mr Dean refers to Cranfield v Bridgrove Ltd [2003] EWCA Civ 656; [2003] 1 WLR 2441, where a part of the judgment relates to the case of Murphy v Staples. In that case the challenge to the validity of service effected within the jurisdiction was on the basis that service should have been effected on the defendant’s solicitors, and not on the defendant company itself. The facts are set out in the judgment of Dyson LJ at para [63]:

“On 21 November 2001 (one day before the expiry of the limitation period), the claim form was issued. On 15 March 2002, Horwich [the claimant’s solicitors] 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 [the defendant’s solicitors], 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.” (emphasis added)

The Court of Appeal concluded that service on the company’s registered office on 15 March 2002 was good service. So the Court did not have to consider whether service on the solicitors was good or not. Moreover, as recorded at paras [64] and [67], the District Judge had concluded “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”, and the claimant did not challenge that decision of the District Judge. There is no discussion of why the District Judge reached that conclusion. Nevertheless, at paras [87]-[88] Dyson LJ said:

“… 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.

88.

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…”

Peter Smith J cited these paragraphs at para [145] of his judgment in Phillips. He also drew the conclusion at para [147] that “service of a copy claim form is not good service”. Mr Dean submits that Peter Smith J drew his conclusion from Murphy. If he did, it is to be noted that in Phillips service was out of the jurisdiction pursuant to the Hague Convention, for which, as Neuberger LJ recorded, there was an express requirement for a copy of the claim form to be sealed (see para 27 above), whereas Murphy was a case of service within the jurisdiction. I have not been referred to the version of the rules applicable to service within the jurisdiction in 2002.

As to the significance of the court seal, Mr Dean refers to CPR Part 2.6(3):

“A document purporting to bear the court’s seal shall be admissible in evidence without further proof”.

Mr Dean refers to the contents of the form prescribed in the Practice Direction para 3.1 (Form N1A). It contains the following “Notes for claimant completing a claim form”:

•

“If you are filling in the claim form by hand, please use black ink and write in block capitals

•

Copy the completed claim form and the defendant’s notes for guidance so that you have one copy for yourself, one copy for the court and one copy for each defendant…”

Mr Myerson submits that there is no requirement in the rules relating to service under Part 6.40(c) for service to be of a claim form to which the court has affixed a seal (a first generation copy), as distinct from a copy of such a document (a second generation copy). Once it has been issued, how it comes to the attention of the defendant is not important, so long as that is by one of the methods specified in the rules.

Mr Myerson submits that Phillips does not assist Mr Bates, because the House of Lords allowed the appeal and restored the order of Peter Smith J dispensing with service of the claim form pursuant to CPR Part 6.9. He refers also to the passage in the speech of Lord Brown at paras [30]-[32]:

“30 In these circumstances essentially two questions fall for your Lordships' consideration: first, is there power in the court by virtue of CPR rr.3.10 and 6.9 to determine that the service of documents actually effected on 19 January 2005 constituted sufficient service for the court then to be seised of the proceedings as definitively pending before it under the Dresser rule? Secondly, if so, ought the court in its discretion to exercise that power?

31.

I have already set out the relevant rules. It seems to me at least arguable that even without resort to r.6.9 the court could simply order under paragraph (b) of r.3.10 that the respondents are to be regarded as properly served, certainly for the purposes of seisin. The "error of procedure" here was, of course, the omission of the English language claim form from the package of documents served: there was in this regard "a failure to comply with the rule (r.7.5)." But that, says paragraph (a) of r.3.10, "does not invalidate any step taken in the proceedings unless the court so orders". The relevant "step" taken here was service of the proceedings out of the jurisdiction.

32.It seems to me that this was essentially the view taken by the majority of the Court of Appeal (McCowan LJ and Sir John Megaw, Lloyd LJ dissenting) in Golden Ocean Assurance Ltd v Martin (The Goldean Mariner) [1990] 2 Lloyd's Rep. 215. Several defendants were there served out of the jurisdiction with copies of the writ, but in each case the wrong copy, addressed not to him but to a different defendant. Another defendant, by an oversight, was served with no writ at all, only a form of acknowledgment of service. The court's procedure at that time was governed by the RSC and the rule in point was O.2. r.1. …”

However, in that passage Lord Brown did state that there had been an error of procedure, and the validity of the service was upheld on the basis of CPR Part 6.9. Since I am not considering CPR Part 3.10 or 6.9, this part of Mr Myerson’s submission does not assist him at this stage.

He submits that Mr Dean has misunderstood the Master’s decision in relation to CPR Part 6. 40(3)(c). She was not saying that compliance with local law in Monaco remedied any defect under English law. All she said was that there has to be compliance with the local law “even if by UK law the manner of service permitted overseas would be invalid if attempted in the UK”. She was not saying that the requirements for valid service in the UK (which are set out In Section II of Part 6) are to be imputed to the requirements of valid service out of the jurisdiction. The requirements of valid service in the UK are relevant only as part of the general context in which Section IV of Part 6 has to be understood.

Mr Myerson submits that the authenticity of the claim form is not in issue, and in a case where it may be in issue, it can be proved. The seal is not said to be the only means by which a document issued by the court can be proved.

He refers to Abela v Baadarani [2011] EWHC 116 (Ch) where Sir Edward Evans-Lombe cited at para [59] an earlier judgment in the same case where Lewison J said at para [4]: “The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a Defendant. It is not about playing technical games.” That echoes the definition of “Service” in the Glossary to the CPR: “Steps required by rules of court to bring documents used in court proceedings to a person’s attention”. But Mr Dean was right to point out that is also the case that service out of the jurisdiction when permission is required is an exercise of the powers of the state outside its own borders, and so must be carried out in accordance with the rules of court: Brown v Innovatorone PLC [2009] EWHC 1376 (Comm).

In my judgment Mr Dean is correct to submit that it is English law that determines what is required to be served. And Mr Myerson is correct to submit that what would be required if service were being effected under Section II of Part 6 within the jurisdiction cannot be imported into Section IV of Part 6. It is an aid to construction, but no more.

In my judgment reference to what is required where service is effected under the Hague Convention pursuant to CPR Part 6.40(3)(b) and Part 6.43(3) is likewise only an aid to construction. But in so far as it is an aid to construction, it seems to me that it favours Mr Weston rather than Mr Bates. Since, in a Hague Convention case, the CPR makes an explicit requirement for service of a copy document which the court has sealed, and since that is the only reference in Section IV of Part 6 to the court sealing a claim form, I would more readily infer that there is no requirement for a claim to have affixed to it the court seal if service is effected under CPR Part 6.40(c). It follows that the references in Phillips (a Hague Convention case) to the need for a seal are likewise of no assistance to Mr Bates.

In the absence of any discussion or explanation of the reasoning of the District Judge in Cranfield/Murphy, I find that case difficult to understand, in so far as it refers to an “original claim form”. Any statement from the Court of Appeal must be given great weight by this court, even if it is obiter, as were these statements in Cranfield/Murphy. But words in a judgment must be understood in their context. They are not like the words of a statute. And that court did not receive the detailed submissions I have received, or indeed any submissions, and I must reach my conclusions for reasons which I can explain.

It appears from Cranfield/Murphy para [64] that the District Judge referred to Godwin v Swindon BC [2001] EWCA Civ 1478; [2002] 1 WLR 997 and to Nanglegan v Free Hampstead NHS Trust [2001] EWCA Civ 127; [2002] 1 WLR 1043. Godwin’s case turned on timing: the documents had been posted too late to be deemed to have arrived in time pursuant to the then current version of CPR Part 6.7(1) (now CPR Part 6.14). Nanglegan’s case turned on the address at which documents were required to be served, and the address used was not the address that had been agreed. And in para [64] of Cranfield/Murphy it is stated that the day before the expiry of the limitation period the claimant’s solicitors had served the documents to the defendant at its registered office, pursuant to the Companies Act 1985 s.725(1), and posted “courtesy copies” to the defendant’s solicitors. The decision of the Court of Appeal turned on “the interplay between s.725 and the Rules” (para [84]), a point first raised by that court itself (para [74]). Although the Court refers to “the original claim form”, there is no discussion any of these three authorities of what is meant by “the original claim form”, nor of first generation and second generation copies. And the guidance the Court was giving in para [67] was stated to be as to CPR Part 6.9, not as to what documents had to be served.

I also note that CPR Part 7.5 includes no express reference to the court sealing a claim form. All that it, and the Practice Direction, refer to is the issuing of claim form and the entering of the date on the form. In Practice Direction 7A para 5.1 and 5.2 it is clear that the words “claim form” refer to the document received in the court office, and so at a time when it does not yet bear any date stamp or seal fixed to it by the court staff.

According to the Glossary to the CPR “A seal is a mark which the court puts on a document to indicate that the document has been issued by the court”. It does not seem to me that CPR Part 2.6(3) takes the matter any further.

There is a limited definition of “claim form” in CPR Part 6.2(c): “‘claim’ includes petition and any application made before action or to commence proceedings and ‘claim form’, ‘claimant’ and ‘defendant’ are to be construed accordingly”. That definition does not address any distinction that there may be between an original, a first generation copy, and a second generation copy.

CPR Part 7.3 provides that “A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings”. So in a case like the present, where there are two defendants, a claimant may use a single claim form. But the claimant cannot simultaneously serve the same hard copy on two different defendants. So where there are two or more defendants, what must be served cannot be required to be the claim form first issued by the court.

In the present case, the Court Office dated and sealed two first generation copies of the claim form. In the even both were served by hand on the Second Defendant, the second being so served because the first was served without the Particulars of Claim and it was decided to served it with the Particulars of Claim. The claim form left at the Town Hall bears the stamp “Defendants Copy”, but there is nothing on it to indicate whether or not this is the same as the stamp on either or both of the claim forms served on the Second Defendant, or whether the court supplied to Mr Weston two copies of the claim form each stamped “Defendants Copy”.

The Master at para [48] of her judgment referred to the solution of “obtaining a fresh first generation copy over the counter”. She had defined these at para [7] as “copies of the claim form which had been supplied by court staff and sealed at court separately, ie copies that had in other words been through the hands of the court staff in a physical sense and sealed by them with a red seal”.

I have not been referred to any provision of the CPR or Practice Direction pursuant to which such copies are supplied by court staff. Whatever such copies may be, they are not the same as the claim form issued under CPR Part 7.5, which is why the Master refers to them as first generation copies. For example, if such a copy is issued only after a period of limitation has expired, and is subsequently served, then, provided there was a claim form issued before the limitation period expired, the limitation period would not have expired before the start of the proceedings.

The Notes on Form N1A correspond to The Queen’s Bench Guide para 4.1.5. However, as stated in para 1.1.3, the Guide does not have the force of law. The use of the words “claim form” in the Notes on Form N1A clearly refer to the document before it is sent to the court office, and so before any stamp or seal is affixed to it by the court.

The claim form in the present case shows that a fee of £360 was paid. That is the sum payable in accordance with Civil Proceedings Fees Order 2008 (2011 White Book Vol II para 10.7) for a claim for a sum not exceeding £50,000. The fees are not set by the number of defendants, or by the number of sealed copies that may be issued.

It seems to me that some indirect assistance can be drawn from consideration of Part 6.3(1)(d) and the Practice Direction 6A para 4.1 (service by fax or other electronic means permitted where there is prior consent). Practice Direction 6A clearly provides that what can be served need not always be an original or first generation copy: para 4.3 provides that

“Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy”.

Suppose that a foreign jurisdiction (not within the EEA) permitted service by electronic means under different conditions from those specified in Practice Direction 6A. Would service pursuant to Part 6.40(3)(c) have to be in accordance with CPR Part 6.3(1)(d) and Practice Direction 6A para 4.1 as well as in accordance with local law? The answer must be in the negative, since CPR Part 6.3(1)(d) is in Section II of Part 6, which relates to “service of the claim form in the jurisdiction or in specified circumstances within the EEA”. There is no basis for reading it into Part 6.40.

An important point is made by Neuberger LJ in Nutifafa Kuenyehia v International Hospitals Group Ltd [2006] EWCA Civ 21 at para 14 after considering Cranfield and other cases:

“… such fine distinctions should not, in our view, be drawn in this area where simplicity, clarity and certainty are particularly desirable”.

The CPR “are a new procedural code with the overriding objective of enabling the court to deal with cases justly” (Part 1.1(1)). It should be possible for litigants and their advisers to find out how to effect service simply by looking at the rules. For the application before the Master there is a mass of documentation and an entire lever arch file with 15 dividers containing authorities and relevant texts. Much of this is relevant only to issues which are not the subject of this judgment, but the authorities cited on the issues which I have had to decide are nevertheless extensive. If that is really required to decide whether such a simple step as service has been properly effected, there is no prospect of the court being able to fulfil the overriding objective of dealing with a case in ways which are proportionate to the amount of money involved and the other factors listed in Part 1.1.

The short answer to the question is in my judgment the one given by Mr Myerson and accepted by the Master. All that CPR Part 6.40(3)(c) provides is that the steps required to bring a claim form to a person’s attention may be taken by any method permitted by the law of the country in which those steps are to be taken. If those steps are successful in bringing the claim form to that person’s attention by such a method (as is not in dispute in this case), there is no additional requirement that a particular hard copy of the claim form be used. The concepts of “original”, “first generation copy” and “second generation copy” were useful concepts for the discussion of this case. But they are not terms that can be derived from the CPR. So far as the CPR is concerned, what constitutes a claim form is a matter of substance. The words “claim form” are not a reference to a particular hard copy of a document.

Parties proposing to serve a claim form will obviously be well advised to continue the present practice of normally serving a copy of the claim form which bears a seal affixed by the court office. A claim form is an important document, and when a defendant is provided with a claim form there ought to be no room to doubt that the date has been entered on the form by the court. Nothing in this judgment should be taken as casting doubt on the desirability of serving proceedings in this way. Any failure to do so is capable of giving rise to delay and waste of costs if the authenticity of the claim form has to be proved otherwise than by means of the seal affixed by the court.

This appeal is therefore dismissed for the reasons given by the Master.