18 St John Street Personal Injury & Clinical Negligence Specialist, Elahe Youshani, provides an insightful analysis of the Court of Appeal’s recent decision in the case of Ideal Shopping Ltd & others v VISA Europe Ltd & others [2022] EWCA Civ 14.
Elahe addresses the questions of:
- Whether unsealed amended claim forms are claim forms for the purposes of rule 7.5, and
- Whether the relevant defaulting party could rely on rule 3.10.
ARE YOU BEING SERVED?
Litigation surrounding the effective service of claim forms has been present for many years but arguments as to the use of rule 3.10 to remedy an error of service of the claim form under rule 7.5 are perhaps more recent, which have resulted in slightly different decisions and schools of thought on the application of rule 3.10. With the aim of providing clarity on the issue, on 13 January 2022, the Court of Appeal handed down its decision in the case of Ideal Shopping Ltd & others v VISA Europe Ltd & others [2022] EWCA Civ 14, with specific reference to the following questions:
- Whether unsealed amended claim forms are claim forms for the purposes of rule 7.5, and
- Whether the relevant defaulting party could rely on rule 3.10.
(The provisions under the Electronic Working Pilot Scheme in CPR PD 51O were also considered in this decision.)
The Facts
The Appellants had issued 16 claims against the Respondents for breaches of competition law. The parties had agreed that it was appropriate to await the outcome of litigation before the Supreme Court concerning similar claims. The Appellants’ solicitor therefore sent copies of the issued claim forms to the Respondents’ solicitors for information, and not by way of service, and the parties agreed to an extension of time for service which ran until 17 July 2020. Following handing down of the Supreme Court judgment, the Appellants’ solicitors made amendments to the original claim forms and on 17 July 2020 they filed them electronically under the Electronic Working Pilot Scheme set out in CPR PD 51O. They sent unsealed amended claim forms electronically to the Respondents’ solicitors before receiving notification that the claim forms had achieved acceptance by the Court. They sent the sealed amended claim forms to the Respondents’ solicitors some days later.
At first instance, the Court found that the sending of the unsealed amended claim forms did not constitute good service and the forms were now out of time. It declined to grant relief to the Claimants under CPR rules 6.15, 6.16 or 3.10.
Court of Appeal judgment in Ideal Shopping Ltd & others v VISA Europe Ltd & others
1. Whether unsealed amended claim forms are claim forms for the purposes of CPR rule 7.5
On the facts in this case, the Court of Appeal concluded the Appellants could and should have taken a number of steps (‘the 5 steps’).
First, the Appellant should have tried to effect service much sooner than the last possible day; no good reason was provided by the Appellants and their solicitors for leaving the filing of the amended claim forms until the last day.
Second, even if the first course was possible, the Appellants’ solicitors could have sought a further extension of time for service of the amended claim forms from the Respondents’ solicitors (which the Respondents had indicated they would have agreed to).
Third, if agreement to an extension was not forthcoming, the Appellants’ solicitors could have engaged in the simple step of serving the original claim forms on 17 July 2020, then serving the amended claim forms when they had been sealed. This would have complied with rule 7.5 and avoided the Respondents obtaining any limitation defence.
Fourth, when the amended claim forms were filed electronically, the Appellants’ solicitors could have asked the Court staff to expedite acceptance of the same, to ensure they were sealed and ready for service before the expiry of the deadline.
Fifth, if the above 4 options failed, the Appellants’ solicitors could have issued an application for an extension of time under rule 7.6(2) before the expiry of the deadline for service under rule 7.5 as extended by agreement (and indicating in their supporting evidence under 7.6(4) any concern as to delays with the electronic file system potentially jeopardising service before the expiry of the deadline). In such circumstances, the Court may have granted a short extension of about one week.
Notwithstanding the 5 steps noted, the Court reiterated the starting point under CPR Part 7 is that the claim form must be sealed before it can be validly served within the requisite time frame following issue of the claim form (per rules 2.6(1) and 7.5).
In previous decisions, the Court had found that service of neither a photocopy of a sealed claim form nor a draft claim form prepared by a solicitor was good service. Therefore, it must absolutely follow that service of an unsealed claim form was not sufficient. And so, “any suggestion that it made any difference that what were to be served were amended claim forms is misconceived. There is nothing in rule 17.1 which removes the requirements in earlier rules such as Parts 6 and 7 in relation to the commencement of proceedings … were it otherwise, the Claimant could avoid the requirement to serve a sealed claim form simply by amending an original claim form without permission under rule 17.1 and then serving the amended unsealed claim form, which, as he said, would make a nonsense of the scheme of the Rules” (paragraph 139).
2. Was CPR rule 3.10 available to remedy the error?
CPR rule 3.10 provides for the general power of the Court to rectify matters where there has been an error of procedure, such as a failure to comply with a rule or practice direction, if, “(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”.
Here, the Court of Appeal considered that the Appellants were asking the Court to treat the service of unsealed amended claim forms as good service and to dispense with the requirement for further service. And as to the question posed – whether rule 3.10 could be exercised in this way – the resounding reply was ‘no’.
First, this was because the issues in this case involved matters to which rules 6.15 and 6.16 (- service of the claim form by an alternative method or at an alternative place, and the power of the Court to dispense with service of the claim form) were applicable, but the Appellants’ applications under those provisions had been refused (as the Appellants could not satisfy the ‘good reason’ or ‘exceptional circumstances’ criteria).
Second, it was also considered that in reality, the Appellants were trying to achieve the same result as they would have under a successful application under rule 7.6(3) to extend time for service, without being able to satisfy the requisite criteria that they had taken all reasonable steps to comply with rule 7.5.
Taking those points together, it was unanimously agreed that the remedying of the Appellant’s error under rule 3.10 would not be permissible as it would involve bypassing rules 6.15, 6.16 or 7.6(3).
The Court of Appeal went to on to comment that the various first instance decisions in recent years were non-binding. Further, whilst perhaps correct on their own particular facts, these decisions were not to be followed in relation to the scope of rule 3.10.
If the Court had concluded that rule 3.10 was available in principle to cure the defect on service in the present case, should that remedy be granted as a matter of discretion? This argument was rejected for three reasons.
First, “where a Claimant leaves the filing of claim forms until the last day for service … it courts disaster and has a limited claim on the indulgence of the Court. This is all the more so where the failure to serve sealed amended claim forms was due to a mistake on the part of the Appellants’ solicitors” (paragraph 155).
Second, despite the Respondents being fully aware of the claims being made against them (as they had a complete copy of the Particulars of Claim and so the error in procedure having caused them no prejudice), “knowledge of the claims by the Defendant is a necessary but not sufficient factor for the Court to consider when exercising its discretion as to whether to grant relief” (paragraph 156).
Third, despite the force of the argument as to the Appellants’ prejudice if their claims are time-barred, it was concluded that such prejudice is outweighed by the Respondents’ prejudice of being deprived of limitation defences.
Conclusion
It is hoped this decision provides some certainty to both Claimants and Defendants insofar as the application of rule 3.10 as to the service of claim forms. No doubt the ambit of this rule may be explored further in other regards in the future.
When undertaking service of claim forms, Claimants must carefully ensure they have taken appropriate steps to effect service in good time, and if not, to exercise some of the 5 steps (if applicable) to maximise their prospects and ensure valid service. Where the Claimant’s representatives have failed in some regard to comply with the rules, this decision gives assistance going forwards to both parties as to a Court’s likely approach on application of the rules as well as the exercise of its discretion.
For more information on Elahe Youshani and other members of the Personal Injury, Clinical Negligence & Costs Department at 18 St John Street, please contact a member of the civil clerking team on 0161 278 8261 or pi@18sjs.com.