Gee 7 Group Ltd v Personal Management Solutions Ltd

(As Approved)

This is in substance an application by PG under CPR rule 6.15(2). I say "in substance" because, as I related in my earlier judgment, the matter came before the court on an appeal by G7 against the order of Deputy Master Cousins dated 21 September 2015. By that order, the Deputy Master made a declaration that the sending of the amended claim form and Particulars of Claim in these proceedings to RPC by fax and DX on 3 July 2015 was good service. That being so, it was unnecessary for the Deputy Master to deal with PG's application for an order under rule 6.15(2).

By a respondent's notice PG stated that, if necessary, they would seek to uphold the Deputy Master's order on the alternative ground that an order should be made in their favour under rule 6.15(2). Strictly speaking, it seems to me that that is not a matter that was susceptible of being made the subject of a respondent's notice. As I have indicated, the Master's order was that the sending of the amended claim form and Particulars of Claim on 3 July 2015 was good service. That cannot be upheld on an alternative basis by an application under rule 6.15(2). By contrast, rule 6.15(2) enables the court to make an 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. However, counsel for G7 very sensibly accepted that this court should deal with the application under rule 6.15(2) in order to avoid the matter having to be remitted to the Master with the likely consequence of a yet further appeal to this court thereafter.

I turn therefore to consider PG's application under rule 6.15(2) on its merits. The background to the matter has been fully set out in my previous judgment, but to recap the essential points for present purposes, the claim form was issued on 5 March 2015. Accordingly, it had to be served by Sunday 5 July 2015. PG's solicitors, McDaniels, attempted to serve the amended claim form, together with Particulars of Claim and Defendants' response pack, on 3 July 2015. They did not serve the documents, however, on G7. Rather, they served the documents upon RPC in circumstances where, as I held in my previous judgment, RPC had not stated that they were instructed to accept service of the claim form. Thus the service on RPC was not good service. Against that background, PG now seek an order pursuant to rule 6.15(2) that the steps that they have taken to bring the claim form to G7's attention, i.e. service on RPC on 3 July 2015, is good service.

The relevant parts of rule 6.15 provide as follows:

"(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."

Also relevant is practice direction 6A paragraph 9.2, which provides as follows:

"Where the application for an order is made after the applicant has taken steps to bring the document to the attention of the person to be served by an alternative method or at an alternative place, the application must be supported by evidence stating –

(1) the reason why the order is sought;

(2) what alternative method or alternative place was used;

(3) when the alternative method or place was used; and

(4) why the applicant believes that the document is likely to have reached the person to be served by the alternative method or at the alternative place."

The applicable principles on an application under rule 6.15 were recently reviewed by Floyd LJ giving the lead judgment in Barton v Wright Hassall [2016] EWCA Civ 177 at [5] to [18] where he considered the decision of the Supreme Court in Abela v Baadarani [2013] UKSC 44, [2013] 1 WLR 2043, the decision of the Court of Appeal in Power v Meloy Whittle Robinson [2014] EWCA Civ 898, the decision of the Court of Appeal in Kaki v National Private Air Transport Co [2015] EWCA Civ 731, the decision of the Court of Appeal in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 WLR 2472 and the decision of the Court of Appeal in Nata Lee Ltd v Abid [2014] EWCA Civ 1652. He summarised the effect of those authorities at [19] as follows:

"I would summarise the effect of these authorities in the following way:

i) In deciding whether steps should be validated under the rule the court should simply ask itself whether there is "good reason" to do so: (Abela [35]).

ii) A critical factor in deciding whether to validate service under the rule is that the document has come to the attention of the party intended to be served: (Abela [36]). That is the whole purpose of service: (Abela [37], [38]).

iii) However it is not by itself sufficient that the document was brought to the attention of the opposite party: something more must be present before there is a "good reason": (Abela [36]).

iv) In deciding whether there is a "good reason", there will inevitably be a focus on the reason why the claim form cannot or could not be served within the period of its validity, although this is by no means the only area of inquiry: (Abela [48], Kaki [33]).

v) The conduct of the claimant and of the defendant is relevant: (Kaki [33]). It is not necessary, however, for the claimant to show that he has taken all the steps he could have reasonably taken to effect service by the proper method: (Power [39]).

vi) The mere fact that one party is a litigant in person cannot on its own amount to a good reason, although it may have some relevance at the margins: (Hysaj [44]–[45]; Nata Lee [53]).

vii) If one party or the other is playing...