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Court considers service of a defendant’s notice to force claimant to serve proceedings or discontinue a claim

14 February 2017

A recent decision not only reminds practitioners of a defendant’s ability to force a claimant to either serve proceedings or discontinue a claim by using a CPR 7.7(1) notice, but also considers for the first time the date for compliance with such a notice.

Legal Procedure

A claimant in this jurisdiction has four months in which to serve a claim form from the date of issue. However, the Civil Procedure Rules (CPR) provide under rule 7.7(1) that where a claim form has been issued, but not yet served, the defendant may serve notice on the claimant requiring him to either serve or discontinue the claim within 14 days of service of the notice. This procedure is one which is rarely used in practice. However, it can be helpful in circumstances where a defendant wishes to establish whether the claimant intends to pursue the claim and is not willing to wait until the four month period has expired.

CPR 7.5(1) sets out the rules for service of a claim form and provides that when served within the jurisdiction, the claimant must complete the prescribed step in relation to the chosen method of service before midnight on the calendar day four months after the date of issue. However, CPR 6.14 provides that a claim form is deemed served on the second business day after the claimant has taken the relevant step in CPR 7.5(1).

The question in this case was whether the deadline set out in the notice was complied with by completing the prescribed step for service on or before that deadline or if the date of deemed service of the claim form must fall before the deadline.

Factual Background of the Case

In Brightside Group Ltd and others v RSM UK Audit LLP and another [2017] EWHC 6 (Comm) the claimant issued their claim in April 2016, but failed to promptly serve the claim form on the defendant. On 27 May 2016 the defendant gave notice under CPR 7.7(1) requiring the claimant to either serve or discontinue the claim within 14 days, being 10 June 2016. The claimant made no attempt to serve the claim form until 3:30pm on 10 June when the claim form was left at the office of the defendant’s solicitors.

The defendant argued that according to CPR 6.14 the claim form was not deemed served until 14 June, due to 10 June being a Friday, and that the notice had therefore not been complied with.

The Decision

Baker J agreed with the defendant’s argument. He made the point that there have always been two separate questions when it comes to service:

  1. what must the claimant do to effect service; and
  2. when does the CPR say that service takes place.

He also disagreed with Green J’s obiter comments in Ageas (UK) Ltd v Kwik-Fit (GB) Ltd [2013] EWHC 3261 (QB) and Flaux J’s decision in T & L Sugars Ltd v Tate & Lyle Industries Ltd [2014] EWHC 1066 (Comm) that CPR 7.5, not CPR 6.14, was the correct provision in determining the date of service, and went so far as to criticise Flaux J’s reasoning by saying that it was “incorrect and unhelpful…to speak about when service “actually occurs” as distinct from when the CPR says it occurs.”

Comment

This disagreement with previous judgments creates some uncertainty about the purpose of CPR 6.14. Is its purpose solely to fix the date from which the deadlines for subsequent steps are calculated from, or is it to fix the date on which service is deemed to have occurred for the purpose of compliance with notices to this effect? To gain further clarity on this issue it will therefore be necessary to see whether Baker J’s approach is followed in future rulings.

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