Coal Pension Properties Limited v Mace Living Limited & Ors

The first application before the Court is the Claimant’s application as follows:

For a declaration that service of the Claim Form was validly effected by the Claimant on 2 February 2026.

Alternatively:

For an order that, pursuant to CPR 6.15, the Claimant is permitted alternative service of the Claim Form and/or time for service of the Claim Form is extended to 5 February 2026.

Alternatively:

For an order that, pursuant to CPR 3.1 and/or CPR 3.9, time for service of the Particulars of Claim is extended to 5 February 2026

or

For an order that, the Claimant is granted relief from sanctions and is permitted to serve its Particulars of Claim.

The second application before the Court is the Defendants’ application for declarations:

1.

That the Claimant’s Application is dismissed.

2.

That the Court does not have jurisdiction to try the claim.

Very helpfully the Parties agreed a statement of facts, from which the following recitation of the facts is taken.

The parties’ appointed solicitors were Clyde & Co and Forsters (previously Hogan Lovells), who conducted pre‑action correspondence on their clients’ behalf.

The parties’ solicitors agreed a series of stays of the proceedings by Consent Order, which extended the date by which the Claimant was required to serve its Claim Form to 2 February 2026.

The Claim Form issued by Forsters on CPPL’s behalf on 23 December 2021 states that the Defendants’ address for service is the Defendants’ registered office at 155 Moorgate, London, EC2M 6XB.

Nowhere in the correspondence exchanged between the two firms did Forsters expressly ask whether (a) Clyde & Co was instructed or authorised to accept service of the Claim Form; or (b) Clyde & Co was willing to accept service of the Claim Form by electronic means.

Following the outbreak of Covid-19, from at least 7 April 2022 onwards, the footer of Clyde & Co’s emails to Forsters contained the following wording:

COVID-19 outbreak: During the ongoing disruption to working arrangementsand until further notice, service of claim forms, application notices and all other court documents and contractual notices should be made only by email…

(Emphasis added in the Statement of Agreed Facts)

From around July 2022 onwards, Clyde & Co’s email signature changed and was replaced with a footer, which stated

Please could we request that all correspondence with us is sent electronically where possible. For matters subject to the jurisdiction of England & Wales and where you have agreed with the lawyer with the conduct of the case that email service is appropriate, please use this address service@clydeco.com for service, subject to the restrictions set out here. Please copy your email to the lawyer with conduct of the case and include our Clyde & Co reference.

(Emphasis added in the Statement of Agreed Facts)

On 7 July 2023Clyde & Co sent a letter to Forsters proposing that the date for the service of the Letter of Claim and the Claim Form be stayed. Attached to that letter were a draft order and a draft form N244. The draft form N244 indicated that the application related to (among other things)

THE COURT ORDER DATED 29 MARCH 2023 VARIED SO AS TO EXTEND THE TIME FOR SERVICE OF THE CLAIM FORM TO A DATE 18 MONTHS FROM 4 SEPTEMBER 2023.

At the end of the N244 form, in the section headed ‘Applicant’s address to which the documents about this application should be sent’, Clyde & Co included its own address. Beneath that, in a separate box, were the email addresses of an associate and a partner at Clyde & Co – Mr. David Tubman and Mr. Jonathan Brown. A draft and unsigned copy of the N244 as described above was uploaded on 13 July 2023 by Clyde & Co to the Court’s CE File for information purposes, along with: a draft signed Consent Order as noted below which included the words “AND ON reading those documents recorded in the court file as having been read”; and a cover letter which included the wording “We also enclose a copy of the draft unilateral application notice, which we had originally proposed to file with the Court before the Parties agreed to the Consent Order”.

On 11 July 2023 Clyde & Co emailed Forsters attaching a further draft Consent Order extending the date for service of the Letter of Claim to 4 September 2023 and the date for service of the Claim Form to 4 March 2025. Both firms of solicitors signed the Consent Order on behalf of their clients and Clyde & Co emailed a sealed version to Forsters on 18 July 2023 for Forsters’ records.

On 4 September 2023, Forsters sent a detailed Letter of Claim to Clyde & Co which valued the claim at that time in the region of £82 million. Clyde & Co provided a detailed Letter of Response on 12 December 2024.

On 15 December 2023 Clyde & Co were provided with some documents that had been requested by them and which were referred to as “Priority Documents”.

On 11 September 2024, Forsters emailed Clyde & Co attaching a Mimecast file enclosing an application for a stay to extend the date for providing the Letter of Response to 16 December 2024. Both firms of solicitors signed the Consent Order on behalf of their clients. On 25 October 2024, Clyde & Co emailed Forsters requesting a copy of the sealed Consent Order once received from the Court and on 28 October 2024, Forsters emailed the sealed Consent Order to Clyde & Co.

Between 2 October 2025 and 15 October 2025, Forsters and Clyde & Co corresponded by email in relation to the terms of a Consent Order to extend the stay of proceedings to 30 January 2026 and service of the Claim Form to 2 February 2026. On 23 October 2025 Forsters emailed Clyde & Co a copy of the sealed Order of the Court on the terms referred to in the previous sentence and Clyde & Co emailed the same day to acknowledge receipt.

At 16:46 on 2 February 2026, Clyde & Co received an email from Forsters purporting to serve the Claim Form, Particulars of Claim and Initial Disclosure by email. This email was the only means by which the claim documents were dispatched to Clyde & Co / Mace prior to midnight on 2 February 2026.

Mace was aware of the existence and content of the Claim Form issued on 23 December 2021 prior to 2 February 2026, but had not had sight of the Particulars of Claim attached to the email sent to Clyde & Co on that date.

In an email sent to Forsters at about 17:37 on 4 February 2026 Clyde & Co said that it could not immediately find any record of providing agreement that it would accept service of CPPL’s Claim Form and Particulars of Claim by email and requested that Forsters provide confirmation by no later than 17:30 on 5 February 2026. Clyde & Co also reserved Mace’s rights, specifically in respect of whether effective or valid service had been made.

At around 21:45 on 4 February 2026, Andrew Parker and a colleague from Forsters handed three separate envelopes (each containing the Claim Form and Particulars of Claim) to a security officer, who works at The St Botolph Building, which includes Clyde & Co’s offices.

At around 23:20 on 5 February 2026, Mr Parker and a colleague from Forsters attended Mace’s offices. Once inside the entrance, they handed three separate envelopes, each containing the Claim Form and Particulars of Claim, to a security officer who worked there.

CPPL’s allegations concerning (i) the external wall; (ii) structural defects; and (iii) Kopex defects were settled by CPPL’s acceptance of Mace’s Part 36 offers on 13 February 2026. The total value of the offers that were accepted was £25,447,748.12 plus costs.

The Claimant’s case is that the Claim Form was validly served on 2 February 2026 when Forsters sent Clyde & Co copies of the Claim Form and Particulars of Claim by email.

This part of the Claimant’s case gives rise to three sub-issues:

CPR 6.3(1) provides:

6.3—(1) A claim form may be served by any of the following methods—

(a)

personal service in accordance with rule 6.5;

(b)

first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;

(c)

leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;

(d)

fax or other means of electronic communication in accordance with Practice Direction 6A; or

(e)

any method authorised by the court under rule 6.15.

CPR 6.3(d) requires that where service is by means of “electronic communication” that service must be “in accordance with Practice Direction 6A”.

CPR 6.7 provides:

6.7—(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), where—

(a)

the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or

(b)

a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction, the claim form must be served at the business address of that solicitor.

It is not suggested in this case that CPR 6.7(1)(a) applies. CPR 6.7(1)(b) applies where “a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form”. Thus the provision is triggered by an appropriate notification by the defendant’s solicitor.

Practice Direction 6A provides at paragraph 4.1:

Service by fax or other electronic means

4.1

Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means—

(1)

the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving—

(a)

that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and

(b)

the fax number, e-mail address or e-mail addresses or other electronic identification to which it must be sent; and

(2)

the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1)—

(a)

a fax number set out on the writing paper of the solicitor acting for the party to be served;

(b)

an e-mail address or e-mail addresses set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address or e-mail addresses may be used for service; or

(c)

a fax number, e-mail address or e-mail addresses or electronic identification set out on a statement of case or a response to a claim filed with the court.

(3)

Where a party has indicated that service by email must be effected by sending a document to multiple e-mail addresses, the document may be served by sending it to any 2 of the e-mail addresses identified.

4.2

Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).

4.3

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

Important points to note are:

The Claimant’s answer to this question relies upon the draft form N244 sent to Forsters referred to at paragraphs 10 and 11 above.

In his oral submissions, Mr Howells KC summarised the point as follows (Footnote: ¹):

The claimant says that in the context of that earlier witness statement and the statement that the claim was treated as live, and under conduct of Clyde’s, and had been the subject of these detailed discussions, and would be going forwards as it was, the reasonable construction of the draft N244 form, which was relied upon by the claimant, which is where we started this bit, was that Clyde’s had given sufficient written notification they would accept service of the claim form as part of that same ongoing process described in the lengthy chronologies in both Mr Brown’s witness statement of March 2023, and the evidence from Mr Tubman on the form in July 2023.

In the circumstances, the claimant says, it’s reasonable and appropriate to construe the reference in the form, the N244 form relied upon by the claimant, to the reference of serving documents about the application as being sufficient to extend to and include service of the claim form, as well as service of the letter of claim, because that was the subject matter of the application that Clyde’s were making on Mace’s behalf at that point. We also say, and accepting we’ve started by saying this is a matter of interpretation, and we look at the document itself, there is further evidence that supports this construction as being the correct interpretation: that the position of the parties on receipt of the form, and from then on, for that matter, is that the claimants reasonably could and did understand that document and all subsequent engagements with Clyde’s were on the basis that they were the solicitors [instructed] to accept service.

The Claimant relies upon the decision of the Court of Appeal in Actavis Group HF v Eli Lilly & Co. [2013] EWCA Civ 517. In that case the argument concerned the claimant party or parties in respect of which the defendant had agreed to accept service. At paragraphs [25] to [27] of his judgment, Kitchin L.J. said:

25.

This issue has two aspects. First, Lilly says it never agreed to accept service of proceedings brought by Actavis Group; rather it agreed to accept service of proceedings brought by Actavis PTC and its relevant national subsidiaries. Second, Lilly says it never agreed to accept service of proceedings brought by any Actavis company in respect of the foreign designations of the Patent; it only ever agreed to accept service of proceedings in respect of the UK designation.

26.

Before addressing each of these matters, I must say a little about the relevant principles. It was common ground that the extent of Lilly’s agreement to accept service must be determined objectively and in the same way as a commercial contract.

27.

The approach to be adopted to the interpretation of a commercial contract was recently summarised by the Supreme Court in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900. As Lord Clarke said at [14], the ultimate aim is to determine what the parties mean by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant. The reasonable person is one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

I accept that the guidance there given by the Court of Appeal is applicable in the present case where the question under CPR 6.7 is whether “[Clyde & Co] notified [the Claimant] that [Clyde & Co had been] instructed to accept service of the claim form on behalf of the Defendant”.

Thus the question is whether a reasonable person would have understood the contents of the draft Form N244 to be a notification that Clyde & Co had been instructed to accept service of the claim form on behalf of the Defendant.

I was referred extensively to the judgment of Fraser J. in LSREF 3 Tiger Falkirk Limited I S.a.r.L. v Paragon Building Consultancy Ltd [2021] EWHC 2063 (TCC), which I shall refer to hereafter as “Paragon”. For present purposes, the important part of the facts in that case is that there had been an agreement reached that there would be an extension to the date by which the Claimant must serve its Claim Form and Particulars of Claim. In that case the Defendant’s solicitors (who happened also to be Clyde & Co) negotiated and agreed that “Extension Agreement”.

At paragraphs [7] and [8] the learned Judge said:

7.

As is commonplace generally (and this was the case even before the pandemic) the vast majority of communication between solicitors in this case was performed by way of email. Here, the Claim Form was issued on 14 August 2020 and the life of that Claim Form would have ended four months later, on 14 December 2020. However, on 9 December 2020 the parties agreed that this deadline would be extended to midnight on 29 January 2021. This was in a document called the Extension Agreement which is referred to in the Agreed Facts and which I explain further at [10] below.

8.

Although there was some contact and correspondence between the two firms over time, it is common ground that nowhere in that correspondence did S+W ask if the Defendant’s solicitors were instructed to accept service, nor did Clydes volunteer that they were so instructed or authorised. The subject was simply never raised. It therefore is clearly the case that the provisions of CPR Part 6.7(1)(b) were not complied with. Clydes did not “notify the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction”, or indeed, that it was instructed to accept service at all. What seems to have happened is that the solicitors involved at S+W simply appear to have assumed that Clydes either were so authorised, or would become so authorised (or potentially, would not take the point that they were not). Insofar as the person dealing with the matter on 23 April 2021 is concerned, he may have come to the matter years after this initial contact started, and so might have just assumed that someone dealing with the file earlier in time had dealt with this point. Alternatively, it may never have been considered. It does not much matter, in my judgment, why this happened, and there is no need to speculate. It was not done.

At paragraphs [35] to [37]:

35.

The agreement must be construed as a whole and the fact that I have reproduced only some of its terms should not be taken as meaning that I have not done that. There is no dispute between the parties as to the principles of construction, nor could there be. The background facts known to the parties included the pre-action process over a lengthy period, as well as the fact that the Claim Form had been provided to Clydes in October 2020 for the purposes of the commercial meeting (which in this case means a without prejudice meeting, whether for the purposes of seeking a settlement or otherwise).

36.

However, the express words of the agreement – which are the starting point to construe it, given the terms of Woods v Capita Insurance Services Ltd [2017] UKSC 24, including the explanation at [8] to [14] of the effect of Arnold v Britton [2015] UKSC 36 – are, to my mind, clear and unambiguous. Recital B of the Extension Agreement summarises it well. The purpose and intention of the parties, recorded in the agreement, was “to extend the time for service of the claim form and the particulars of claim.” The parts of the CPR specifically identified within the Extension Agreement reinforce this, if reinforcement were necessary.

37.

No part of the Extension Agreement can be construed, in my judgment, as either providing any information necessary to comply with CPR Part 6.7, or as changing the effect of CPR Part 6.7 by agreement, or waiving any part thereof. Nothing in that document, however it is construed, can be interpreted as a statement or representation by Clydes that it had authority to accept service of the Claim Form on behalf of Paragon. It deals purely with extending the deadline for service. Further, the fact that the deadline is extended to one delineated by a precise time, midnight, on the relevant day does not implicitly require or permit service by email in any event, as contended for by Mr Howells. However, even if I were wrong about that and it did, that does not mean of itself that the service by email would be required upon Clydes, rather than upon Paragon. Most companies have emails accounts of their own. Even if Mr Howells were right and the use of midnight on a given day meant, implicitly, service had to be effected by email, this could be achieved by serving upon Paragon itself.

At paragraphs [27] to [30]:

27.

This is the issue of authority. CPR Part 6.7(1)(b) requires “a solicitor acting for the defendant” to have “notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant”. There was no such notification here.

28.

The reason for express notification is very clear. As stated by Lord Sumption at [17] of Barton v Wright Hassall LLP [2018] UKSC 12, “A solicitor must have his client’s authority to accept service of originating process”. Any solicitor acting for a client generally does not such authority as a matter of course, or as a function of being that client’s solicitor generally, or being involved on that client’s behalf in the dispute. As a Supreme Court case, the decision in Barton v Wright Hassall is of the highest authority and I will refer to it further at [48] below.

29.

The need for specific authority by solicitors to accept service for a defendant is explained further in other cases, including in Higgins v ERC Accountants and others [2017] EWHC 2190 (Ch) by HHJ Pelling QC, quoting at [23] Arnold J (as he then was) in Personal Management Solutions Ltd v Gee 7 Group Ltd [2016] EWHC 891 (Ch) at [26]. The passage from the judgment in Higgins says:

“[23] In addition, Cs had not asked any of the defendants or their respective solicitors either in the pre-action protocol letters or by any subsequent communication down to 20 July whether they were able to serve proceedings on the defendants' solicitors. That only came much later in the following year. CPR r.6.7 is entirely clear as to what is required if service is to be effected on a solicitor. A solicitor does not generally have implied authority to accept service and if a solicitor accepts service without express authority he or she is in breach of his professional duty to his client – see Personal Management Solutions Limited v. Gee 7 Group Limited [2016] EWHC 891 (Ch) per Arnold J at [27]. As Arnold J pointed out, this is not a technical point. It is an important matter as between clients and solicitors since holding a solicitor to have accepted service on behalf of a client notwithstanding that the solicitor had not said he was authorised to accept service or even been asked whether he was authorised to accept service could expose a solicitor without actual authority to accept service to regulatory action or a claim.”

30.

The dicta in Personal Management of Arnold J (as he then was) relied upon by HHJ Pelling QC states:

“[26] …..As I said at the outset of this judgment, there is no dispute that at that point in time there had been no explicit statement by RPC that they were authorised to accept service. For the reasons that I have given, in my judgment no such statement was implicitly made on the true construction of any of the correspondence upon which PG relies.

[27] In his judgment the Deputy Master reached the opposite conclusion. In doing so, he seems to have been influenced by the fact that, as he stated no less than three times in his judgment, he considered that the point being taken by G7 was "a highly technical point". It may be that it is a technical point, but it is not simply a technical point, as counsel for G7 rightly submitted. The question of whether an originating process has been properly served is not simply a technical question; it goes to the root of the court's jurisdiction. Moreover, it is also an important matter as between clients and solicitors because it is well established that, even a solicitor is acting for his client in all respects relating to intended claim, he does not have implied authority to accept service of originating process.”

(emphasis added by Fraser J.)

And, finally, at paragraphs [40] and [41]:

40.

Indeed, the longer that these points were the subject of submissions, the more convinced I became that all of these myriad issues are precisely why the Rules Committee themselves have, very clearly, set out exactly what is required for service of proceedings upon solicitors; and for service by electronic means. If the requirements of the relevant parts of CPR Part 6, and the Practice Direction 6A, had been followed, there would have been no difficulty.

41.

The Claimants also advanced an argument that by Clydes signing the Extension Agreement on Paragon’s behalf, this in some way led to creation of the necessary authority for the purposes of service of the Claim Form. This was based partly on the fact that the word “Solicitor” is defined in CPR Part 6.2 (d) to include any person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act). I reject that argument. The cases make clear that even if a solicitor is acting in all respects for a party in potential litigation, more is required in terms of authority. I can do no better than merely to repeat the dicta of Arnold J (as he then was) from the case quoted at [30] above when he said:

“Moreover, it is also an important matter as between clients and solicitors because it is well established that, even a solicitor is acting for his client in all respects relating to an intended claim, he does not have implied authority to accept service of originating process.”

In my judgment, there are significant factual similarities between the exercise which I am carrying out of construing the objective meaning of the draft Form N244 and the exercise that Fraser J. was carrying out in respect of the Extension Agreement:

In Paragon, despite extensive email correspondence, the learned judge held that there had been no notification falling within the scope of CPR 6.7.

It is also significant in my view that the relevant communication relied upon (the draft Form N244) was a communication between solicitors. Experienced solicitors should have understood the fundamental importance of clarity as to whether a defendant’s solicitor had authority to accept service, not least because of the authorities to which Fraser J. referred, all of which antedated the draft Form N244.

In the circumstances, in my judgment the Form N244 cannot be taken to be a notification by Clyde & Co that it was authorised to accept service of the Claim Form.

This conclusion is sufficient to establish that the service of the Claim Form and Particulars of Claim by email on 2 February 2026 was not valid service.

However, as this matter may be considered by another Court, it is right that I should deal with the issues as to whether the Defendant, through Clyde & Co, accepted that service could be effected electronically.

As recorded at paragraph 8 above, from at least 7 April 2022 onwards, the footer of Clyde & Co’s emails to Forsters contained the following wording:

COVID-19 outbreak: During the ongoing disruption to working arrangementsand until further notice, service of claim forms, application notices and all other court documents and contractual notices should be made only by email…

(Emphasis added in the Statement of Agreed Facts)

I have already cited extensively from Fraser J.’s decision in Paragon. An unusual feature of the present case is that the effect of the very same Covid footer was considered by Fraser J. in that case.

In the circumstances, I can deal with this point very briefly, by saying, in summary, that I agree with Fraser J.’s reasoning in respect of the Covid footer.

Putting the matter shortly, Fraser J. held at paragraph [25] that the Covid footer complied with paragraph 4.1 of PD 6A, i.e. it indicated a willingness to accept service of documents by email (indeed a requirement to do so), but held that that did not amount to a notification in accordance with CPR 6.7. However, he held that there had been no compliance with the requirement of paragraph 4.2 that “Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means” – see paragraphs [26] and [42(3)] of his judgment.

In my judgment the reasoning which he set out applies to the circumstances of this case, and in the result for this reason also service of the Claim Form by email on Clyde & Co was not valid service.

However, I should deal with a further argument raised by the Defendant, namely that even if the Covid footer would have enabled service by email in the way done, the “replacement footer” renders the service invalid.

As set out at paragraph 9 above, from around July 2022 onwards, Clyde & Co’s email signature changed and was replaced with a footer (“the replacement footer”), which stated

Please could we request that all correspondence with us is sent electronically where possible. For matters subject to the jurisdiction of England & Wales and where you have agreed with the lawyer with the conduct of the case that email service is appropriate, please use this address service@clydeco.com for service, subject to the restrictions set out here. Please copy your email to the lawyer with conduct of the case and include our Clyde & Co reference.

(Emphasis added in the Statement of Agreed Facts)

It is the Defendants’ case that even if the Covid footer would, without more, have rendered the service upon Clyde & Co valid, that footer in its terms only applied “until further notice”. They contend that “further notice” was given when the replacement footer replaced the Covid footer.

I accept that given the very considerable numbers of emails which Forsters received from Clyde & Co containing the replacement footer, the Claimant was on notice that Clyde & Co no longer regarded the Covid footer as being in effect.

It was suggested to me on behalf of the Claimant that once a notification had been given, it could not be retracted. I do not accept that submission, which receives no support from the CPR themselves. It also defies common sense: there are many reasons which can be envisaged which would render retraction or amendment of such a notification appropriate.

If, as I hold, the replacement footer was sufficient to displace the Covid footer (which would only be the case if sufficient notice had been given by Clyde & Co), then the validity of service of the Claim Form would have to be judged by reference to the replacement footer.

There are two significant problems for the Claimant in respect of the attempt to serve by email. Firstly, as discussed in respect of the Covid footer and applying Fraser J.’s decision in Paragon, there was no compliance with paragraph 4.2 of PD 6A in respect of making inquiry of Clyde & Co as to any relevant limitations. Secondly, there was a relevant limitation in the replacement footer itself, namely a requirement for service to be upon two identified email recipients (“service@clydeco.com” and “the lawyer with conduct of the case”). The relevant email was not sent to the identified service address.

For the above reasons, I accept that there was non-compliance with Practice Direction 6A having regard to the replacement footer.

For the above reasons I accept the Defendants’ submission that the purported service of the Claim Form on 2 February 2026 was not valid.

As set out above, in the event that the Claimant’s primary case (that service was valid) fails, it seeks an order under CPR 6.15 effectively retrospectively validating the mode of service adopted – in the first instance providing that the email service was an effective alternative method of service.

CPR 6.15 provides:

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.

A number of authorities were cited to me. I think it sufficient at this stage to refer to the decision of the Court of Appeal in The Queen ex p. The Good Law Project v. The Secretary of State for Health and Social Care [2022] EWCA Civ 355.

At paragraphs [54] to [58] of her judgment, Carr L.J. said:

54.

CPR 6.15 is directed specifically to the rules governing service of a claim form, which contain the conditions on which the court will take cognisance of a matter at all. The relevant principles have been well-travelled in the authorities, with the decision in Barton, endorsing the earlier Supreme Court decision in Abela v Baadarani [2013] UKSC 44; [2013] 1 WLR 2043, at the helm. What constitutes “good reason” is essentially a matter of factual evaluation; over-analysis and copious citation of authority will not assist (see Barton at [9]).

55.

The following summary suffices for present purposes:

i)

The test is whether in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant are good service;

ii)

Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is a critical factor. But the mere fact that the defendant knew of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR 6.15(2);

iii)

The manner in which service is effected is also important. A “bright line” is necessary to determine the precise point at which time runs for subsequent procedural steps. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period. It is important that there should be a finite limit on the extension of the limitation period;

iv)

In the generality of cases, the main relevant factors are likely to be:

a)

Whether the claimant has taken reasonable steps to effect service in accordance with the rules;

b)

Whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired;

c)

What, if any, prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form.

None of these factors are decisive in themselves, and the weight to be attached to them will vary with all the circumstances.

(See Barton at [9], [10] and [16].)

56.

Good Law suggests that Lord Sumption in Barton (at [9]) limited the question of prejudice to a consideration of the defendant’s knowledge of the contents of the claim form. That is not correct. First, Lord Sumption at no stage identified the relevant considerations in prescriptive or exhaustive terms; secondly, it is clear from the decision in Barton itself (at [23]) that Lord Sumption took the loss of an accrued limitation defence to be relevant prejudice for the purpose of CPR 6.15.

57.

Provided that a defendant has done nothing to put obstacles in the claimant’s way, a potential defendant is under no obligation to give any positive assistance to the claimant to serve. The potential defendant can sit back and await developments (see, albeit in the context of CPR 7.6, Sodastream Ltd v Coates [2009] EWHC 1936 (Ch) at [50(9)]). Thus, there is no duty on a defendant to warn a claimant that valid service of a claim form has not been effected (see Barton at [22] and Woodward at [44] to [47]).

58.

The result of the application of these principles can be harsh, as the first instance decisions to which the Judge referred demonstrate. In Barton itself a litigant in person purported to serve a claim form for professional negligence within time by email on the defendant’s solicitors (who were authorised to accept service, but not by email). The claim form expired unserved and the claim had become statute-barred. Both the District Judge and the Court of Appeal declined to authorise such service under CPR 6.15. The (majority in the) Supreme Court agreed. Piepenbrock (again involving a litigant in person) and Ideal (at first instance) (involving solicitors’ failures) are further examples of retrospective validation being refused in circumstances where the defendant had full knowledge of the contents of the claim form within time and the only prejudice was the loss of an accrued limitation defence.

In the same case Underhill L.J. said at paragraphs [97] to [99] and [101]:

97.

The starting-point is that we are concerned with an application for retrospective validation of a non-compliant form of service in circumstances where the effect of the order sought would be to deprive the defendant of a limitation defence. The power under paragraph (2) of CPR 6.15 is of course only in practice required in such a case (otherwise the claimant could simply re-serve); and, as Lord Sumption observed in Barton (see para. 9 of his judgment), it was introduced for that very purpose. But that does not mean that the prejudice to a defendant of losing their limitation defence can be put to one side when deciding whether there is good reason for the exercise of the power. On the contrary, it seems to me that it is an important element in the exercise of the Court’s discretion, and indeed Lord Sumption treated it as such at para. 23. Absent special provision (as under section 33 of the Limitation Act 1980), the effect of a limitation bar is absolute, however harsh that may be in some cases; and that must be the context for the assessment of whether good reason exists to retrospectively validate a form of service which does not comply with the Rules.

98.

Two types of case where it will typically be just to retrospectively validate non-compliant service, notwithstanding the loss to the defendant of a limitation defence, are where the defendant has obstructed compliant service, as in Abela; and where a claimant has taken reasonable steps to effect service but has been thwarted by some unforeseen external occurrence. Those two types are (broadly) reflected in Lord Sumption’s observation at para. 23 of his judgment in Barton that the defendants’ loss of their limitation defence “might not have counted for much” if their solicitors had been responsible for the claimant’s difficulty in effecting compliant service or if he himself had been more diligent and not left things to the last minute.

99.

The present case is not of that kind. GLD did nothing to obstruct proper service, nor can Good Law say that they took reasonable steps to effect it: instead, their solicitors made a careless error. I do not say that that means that it would necessarily be wrong to exercise the discretion under CPR 6.15 in their favour, but it clearly makes their case a good deal less straightforward. The “good reason” for retrospective validation which they advance has to be, and is, that although a careless error was made it was trivial and could not have caused any difficulties to GLD given that the identified case-holder was notified of the contents of the claim form from the start. It is to be noted that it is not part of the “good reason” advanced that the error was not only trivial but venial: the evidence from Bindmans does not particularise how it occurred.

….

101.

Underlying Good Law’s various particular criticisms of the Judge’s decision is a more general point that it cannot be right that they should be deprived of the chance to progress their claim because of a trivial, or “technical”, procedural error which caused no problem of any kind; and that the fact that the error of that kind ought to constitute a good reason for retrospective validation. Phillips LJ makes that point in strong terms at para. 90 of his judgment; and I of course see its force. But it is important to keep in mind the real issue in an application under CPR 6.15 (2). A claimant is asking for a retrospective validation of non-compliant service in order to circumvent a limitation defence. Quite trivial errors can sometimes lead to limitation deadlines being missed. That can be harsh, and may be characterised as technical; but it is recognised as a necessary consequence of a limitation regime. The Court will in this context be less ready to overlook mistakes of a kind which in other contexts would be accorded no real weight.

The first of the factors summarised by Carr L.J. in paragraph [55(iv)] of her judgment, is whether the claimant has taken reasonable steps to effect service in accordance with the rules.

To that question my answer is “no”: in paragraph [56] of his judgment in Paragon, Fraser J. came to the conclusion that the Claimant had not taken reasonable steps to effect service in accordance with the Rules in large part on the basis that the Claimant had not taken the step of asking at any point whether Clyde & Co had authority to accept service. Further, in this case, as in Paragon and in a case decided by H.H. Judge Pelling QC, Higgins v ERC Accountants & Business Advisers Ltd [2017] EWHC 2190 (Ch), at their heart the Claimant’s problems stem in large part from leaving service until a very late stage. I find it impossible to distinguish this case from those two authorities when considering this first factor.

The second factor is whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired. In this respect the facts are in the Claimant’s favour, and the answer is “Yes”. However, the authorities are clear that the fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason: it is necessary but not sufficient for a claimant to establish that the defendant’s solicitors received a copy of the claim form (see H.H. Judge Pelling’s summary of the authorities at paragraph [34] of his judgment in Higgins v ERC Accountants & Business Advisers Ltd).

The final of the three factors is, what, if any, prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form.

Here, as is generally the case in respect of the authorities to which I have been referred as to application of CPR 6.15, the prejudice relied upon by the Defendants is that if the application is granted they will be deprived of an accrued limitation defence. There is no doubt that that can amount to prejudice for the purposes of considering an application under CPR 6.15 (see paragraph [23] of the judgment of Lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12 and paragraph [57] of the judgment of Carr L.J. in The Good Law Project).

In answer to this point, counsel for the Claimant submit in their skeleton argument:

67.

Mace has included two arguments against the grant of relief under CPR 6.15 in the witness evidence of Mr. Hodges at paragraph 63. He states that ‘there will be significant detriment to Mace by reason of the loss of an accrued limitation defence to the breach of contract and negligence claims set out in the Claim Form. Mace will also suffer prejudice in terms of the costs arguments available to it’. [Bundle Tab 8]. As to these points:

67.1

as the Supreme Court in Abela noted, a core purpose or function of the Court’s power under CPR 6.15 is to permit a claim form to commence proceedings where otherwise the claim might be time-barred. The power is of limited relevance in cases where a claimant might re-issue its full claim. CPPL therefore respectfully submits that a balance must be struck when considering this factor in exercising the discretion under CPR 6.15. If the prejudice to the defendant in losing a limitation defence were – with nothing further – to be treated as primary factor in refusing to grant the relief under CPR 6.15 as Mace contends in Mr. Hodges’ evidence, then that relief would be deprived of its main operative purpose as described in Abela;

67.2

CPPL submits that the prejudice that will arise to the Defendants from the potential loss of their limitation defences must be considered in the factual circumstances of the claim as a whole and in conjunction with the other factors relevant to the test under CPR 6.15. As to that, CPPL repeats its submissions above – this is a case for which Mace has actively been preparing a defence for many years, and which even if its limitation defences were successful with respect to the claims in contract and negligence, it would still have to answer under a cause of action under the DPA. In this case, those practical factors outweigh the prejudice caused to Mace;

[The argument then turns to consider the costs argument]

I do not accept those arguments. It is clear that the Defendants have at least a well arguable case that the claims put in contract and in tort are now statute-barred. If I were to allow the application under CPR 6.15, they would be deprived of the opportunity to advance that limitation defence.

The fact that the Claimant may be able to put forward a claim under an alternative basis under the Defective Premises Act 1972 does not advance the Claimant’s case, indeed it may be considered a factor against the Claimant. If a claim under the DPA can succeed in whole or in large part, then the Claimant will not be prejudiced, or in large part will not be prejudiced, by an inability to pursue the claim in contract or in tort.

In respect of this part of this case, I think it useful to repeat the following part of paragraph [101] of the judgment of Underhill L.J. in The Good Law Project:

… it is important to keep in mind the real issue in an application under CPR 6.15 (2). A claimant is asking for a retrospective validation of non-compliant service in order to circumvent a limitation defence. Quite trivial errors can sometimes lead to limitation deadlines being missed. That can be harsh, and may be characterised as technical; but it is recognised as a necessary consequence of a limitation regime. The Court will in this context be less ready to overlook mistakes of a kind which in other contexts would be accorded no real weight.

I also found paragraphs [97] and [98] of Underhill L.J.’s judgment of considerable assistance as illustrating the types of case in which an application under CPR 6.15 will succeed. I asked counsel whether their research had produced any examples of a limitation related CPR 6.15 case which had succeeded which did not fall within the types of cases referred to by Underhill L.J. They were unable to identify any such cases.

I have to step back and ask myself whether there is anything about the facts and circumstances of this case which mean that I should accede to this application. I find myself unable to identify any such facts or circumstances.

Accordingly, the Claimant’s application under CPR 6.15 is dismissed.

I should record that the Defendants submitted that I do not have jurisdiction to make any order under CPR 6.15 on the facts of this case. The point is put as follows in paragraph 42 of the Defendants’ counsel’s skeleton argument:

42.1

CPR Part 6 already permits service of a Claim Form by email to a party’s solicitor and at the principal office of a company in the jurisdiction.

42.2

The purpose of CPR 6.15 is, expressly, to permit alternative methods or places of service, where the usual methods or places are not available (examples in the White Book include service by registered mail to a foreign address and to an email address used for delivering blackmail messages).

42.3

In this matter, CPPL have used permitted methods for service, but have done so either late or incorrectly.

42.4

CPPL’s Application is therefore misconceived: it is not an application for service by an alternative method or at an alternative place.

This is a novel point of some potential importance, but having regard to the conclusions I have reached above, it is not necessary for me to decide it.

For the above reasons, I have concluded that the purported service of the Claim Form and Particulars of Claim was not valid, and should not be rescued by the exercise of the powers of the Court under CPR 6.15.

As I have set out at the beginning of this judgment, the Claimant has a further alternative application:

For an order that, pursuant to CPR 3.1 and/or CPR 3.9, time for service of the Particulars of Claim is extended to 5 February 2026

or

For an order that, the Claimant is granted relief from sanctions and is permitted to serve its Particulars of Claim.

This application only arises in circumstances where the Claimant’s application for a declaration as to valid service fails, but the application under CPR 6.15 is successful (see the Claimant’s counsel’s skeleton argument at paragraph 68). The application is for relief from sanctions with respect to the service of the Particulars of Claim, not in respect of service of the Claim Form.

As the application under CPR 6.15 has failed, the application under CPR 3 does not arise.

For the above reasons the Claimant’s application is dismissed, and the Defendants’ application for declarations succeeds.