Mark Barton v Wright Hassall LLP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Mr Justice Moylan,Lady Justice Black |
| Judgment Date | 23 March 2016 |
| Neutral Citation | [2016] EWCA Civ 177 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2016 |
| Docket Number | Case No: B2/2014/3450 |
[2016] EWCA Civ 177
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT
HHJ GODSMARK QC
NG14028A
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Floyd
and
Mr Justice Moylan
Case No: B2/2014/3450
Howard Elgot (instructed by direct access, but who did not appear in the courts below) for the Appellant
Henry Bankes-Jones (instructed by Berrymans Lace Mawer) for the Respondent
Hearing date: 8 March 2016
This appeal is concerned with an application under CPR 6.15(2) for an order that steps already taken to bring a claim form to the attention of the defendant, but falling short of good service under the CPR, shall count as good service. District Judge Wall ("the district judge"), sitting in the Chesterfield County Court on 14 March 2014, decided that there was no good reason for the court to validate service of the claim form under CPR 6.15(2). HHJ Godsmark QC ("the judge"), sitting in the Nottingham County Court on 2 October 2014, dismissed the claimant's appeal. The claimant further appeals to this court, with the permission of Longmore LJ granted after an oral hearing.
The claimant, Mr Mark Barton, is a litigant in person. The details of his intended claim are not material. It is sufficient to record that he wishes to bring professional negligence proceedings against the defendant and respondent Wright Hassall LLP in respect of their conduct in refusing to continue to act on his behalf in separate professional negligence proceedings which he had commenced against other solicitors.
The relevant parts of the CPR
The central rule under consideration is CPR 6.15, which provides:
"(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."
For reasons which will become apparent it is also necessary to refer to CPR PD 6A, which regulates service of proceedings by electronic means. It provides:
"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 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 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 may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.
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."
The law
In Abela v Baadarani [2013] 1 WLR 2043 the claimant sought to bring proceedings against a Lebanese national resident in the Lebanon. Attempts were made to serve the defendant via the consular authorities in the Lebanon in accordance with CPR 6.42, but these proved very difficult, partly due to the uncooperative attitude of the defendant. There was, however, no doubt that the claim form and its accompanying documents (albeit not translated, as they should have been) were delivered to the defendant's Lebanese lawyer. At first instance the judge had granted a declaration that this amounted to good service, but his decision was overturned by this court on appeal. The Supreme Court restored the judge's decision. At paragraph 23, Lord Clarke JSC, with whom Lords Neuberger, Sumption and Carnwarth JJSC agreed, explained the correct approach to the exercise of the power conferred by CPR 6.15 (2) and the circumstances in which an appellate court could properly interfere with such an exercise by a judge:
"23. Orders under rule 6.15(1) and, by implication, also rule 6.15(2) can be made only if there is a "good reason" to do so. The question, therefore, is whether there was a good reason to order that the steps taken on 22 October 2009 in Beirut to bring the claim form to the attention of the respondent constituted good service of the claim form upon him. The judge held that there was. In doing so, he was not exercising a discretion but was reaching a value judgment based on the evaluation of a number of different factors. In such a case, the readiness of an appellate court to interfere with the evaluation of the judge will depend upon all the circumstances of the case. The greater the number of factors to be taken into account, the more reluctant an appellate court should be to interfere with the decision of the judge. As I see it, in such circumstances an appellate court should only interfere with that decision if satisfied that the judge erred in principle or was wrong in reaching the conclusion which he did."
Lord Clarke summarised the approach at paragraph 35 in the following way:
"… in a case of this kind the court should simply ask itself whether, in all the circumstances of the particular case, there is a good reason to make the order sought. It should not be necessary for the court to spend undue time analysing decisions of judges in previous cases which have depended upon their own facts."
The fact that the defendant has become aware of the contents of the claim form is of course not on its own sufficient for an order to be made under CPR 6.15(2). It is a precondition of an application of the sub-rule that there have been " steps already taken to bring the claim form to the attention of the defendant". However, as Lord Clarke explained it is a critical factor:
"36. The mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2). On the other hand, the wording of the rule shows that it is a critical factor. As the editors of the 2013 edition of the White Book note (vol 1, para 6.15.5), rule 6.15(2) was designed to remedy what were thought to be defects as matters stood before 1 October 2008. The Court of Appeal had held in Elmes v Hygrade Food Products plc [2001] EWCA Civ 121 that the court had no jurisdiction to order retrospectively that an erroneous method of service already adopted should be allowed to stand as service by an alternative method permitted by the court. The editors of the White Book add that the particular significance of rule 6.15(2) is that it may enable a claimant to escape the serious consequences that would normally ensue where there has been mis-service and, not only has the period for service of the claim form fixed by CPR 7.5 run, but also the relevant limitation period has expired."
Later, Lord Clarke said:
"37. Service has a number of purposes but the most important is to my mind to ensure that the contents of the document served, here the claim form, is communicated to the defendant. In Olafsson v Gissurarson (No 2) [2008] EWCA Civ 152, [2008] 1 WLR 2016, para 55 I said, in a not dissimilar context, that
"… the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant's case: see eg Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506, 509 per Lord Brightman, and the definition of 'service' in the glossary to the CPR, which describes it as 'steps required to bring documents used in court proceedings to a person's attention…'"
I adhere to that view."
At paragraph 38 of Abela, Lord Clarke also expressly approved a passage from the judgment of Lewison J (as he then was) at an earlier point in that case, concerned with the playing of technical games:
"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. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations."
At paragraph 48 Lord Clarke explained that, when considering the claimant's conduct, events prior to issue of the claim form were not relevant except in exceptional circumstances. He continued:
"The relevant focus is on the reason why the claim form cannot or could not be served within the period of its validity."
On the facts of Abela, Lord Clarke said at paragraph 51 that there was "good reason", in part because of the un-cooperative and obstructive attitude of the defendant:
"As the judge explained, there...
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