Mr Sean Kelly v Ralli Ltd
| Jurisdiction | England & Wales |
| Judge | Rowley |
| Judgment Date | 07 February 2022 |
| Neutral Citation | [2022] EWHC B5 (Costs) |
| Docket Number | Case No: SC-2021-APP-000672 |
| Court | Senior Court Costs Office |
[2022] EWHC B5 (Costs)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
COSTS JUDGE Rowley
Case No: SC-2021-APP-000672
Ian Simpson (instructed by JG Solicitors) for the Claimant
Martyn Griffiths (instructed by Kain Knight (North & Midlands) Limited) for the Defendant
Hearing date: 29 November 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
COSTS JUDGE Rowley
Introduction
On 26 May 2021 the claimant commenced Part 8 proceedings under section 70 Solicitors Act 1974 against his former solicitors for an assessment of their bill of costs which had been delivered to him on 30 April 2021.
By a letter dated 16 August 2021 the claimant's solicitors informed the court that the proceedings had been served upon the defendant on 29 July 2021, but no acknowledgement of service had been served upon them. The court was requested to list the matter for a directions hearing. As a result of that request, a hearing took place and I gave directions for the defendant to issue an application notice regarding service of the claim form on the basis of submissions made by the defendant's representative.
The defendant issued an application notice on 1 November 2021 and it was heard by me on 29 November 2021 together with a cross application made by the claimant dated 16 November 2021. The defendant sought an order that the claimant's Part 8 Claim be struck out together with costs. The claimant sought an order, if necessary, for service of the claim form to be dispensed with.
Chronology
The defendant's application is supported by a witness statement of Gerard Anthony Courtney, a costs draftsman employed by Kain Knight (North and Midlands) Ltd who are the costs lawyers for the defendant. The claimant's application relies upon a witness statement of James Green, the claimant's solicitor. The claimant also relies upon a witness statement from Mr Green in response to the defendant's application itself. Between these witness statements, all of the relevant documents were exhibited. There is really no dispute in relation to the chronology of events.
The claimant had instructed the defendant in respect of a personal injury claim. That claim concluded in 2019 and at which point the defendant's registered office was at Jackson House, Sibson Road, Sale M33 7RR. On 25 January 2021, the defendant moved its registered office to Dalton House, Dane Road, Sale M33 7AR.
The claimant instructed JG solicitors in respect of the fees of the defendant. JG solicitors wrote to the defendant on 12 April 2021 at the Jackson House address and also sent their letter by email. The letter requested a final statute bill to be produced and that bill was sent by the defendant to the claimant on 30 April 2021.
On 26 May 2021 the Part 8 Claim was issued. The defendant's address was stated to be the Jackson House address. On 27 July 2021 the claimant emailed the defendant and copied in Mr Courtney who had been corresponding with Mr Green previously. The email included a copy of the claim form as well as a letter which indicated that papers were being placed in the post for service. The letter was addressed to Farhanah Ismail, the defendant's complaints partner, at the Jackson House address.
As I have indicated above, the claimant's solicitors wrote to the court in August 2021 in the absence of any acknowledgement of service from the defendant. There appears to have been no communication between the parties until a copy of the notice of the directions hearing was received by the defendant. It is not clear to me from Mr Courtney's witness statement whether the defendant received a copy of the hearing notice from the court as well as the one contained in an email from the claimant's solicitors on 29 September 2021.
Mr Courtney wrote an email to the claimant's solicitors on 30 September 2021, on behalf of the defendant, to say that service had not taken place and at that point set out the Dalton House address. The claimant's solicitors attempted to serve an amended claim form on 5 October 2021 at that address. Mr Courtney wrote again on 6 October 2021 to advise that the defendant could not accept service of the amended claim form given that the time for service had expired on 26 September 2021.
The Rules
In this case, the defendant had no notice of the proceedings prior to them being commenced. As such, although they are a firm of solicitors, they do not come within rule 6.7 regarding service on the solicitors of the defendant: (see Thorne v Lass Salt Garvin [2009] EWHC 100 (QB).) Nor did the defendant give an address for service at which it might be served and consequently the relevant rule is the general rule at 6.9 which provides for the relevant place of service, depending on the nature of the defendant to be served. For a company registered in England and Wales the place of service is
“the principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.”
Rule 6.9 deals with service of a paper copy of the Claim Form. Where the claimant wishes to serve it electronically, regard is to be had to paragraph 4 of PD6A. Prior to this method of service being allowed, the putative recipient needs to confirm that it is willing to accept service in this way.
Where proceedings have not been served within four months of the claim form being issued, a party may seek an extension of time for serving the claim form under rule 7.6. The general rule is that an application to extend the time needs to be made prior to the expiry of the original period. If an application is made after the end of that period, the court may only make an order extending time if either the court has failed to serve the claim form, or the claimant has taken all reasonable steps to comply with the requirements for service. In either event, a prompt application is required.
A party who cannot retrospectively extend time for service of the claim form under rule 7.6 may apply to the court for it to dispense with service of the claim form in exceptional circumstances under rule 6.16. The application must be supported by evidence. This is the provision under which the claimant has made an application rather than under rule 7.6.
The case law
The cases referred to by the parties concerned claimants who had either sought to serve proceedings at the very end of the primary limitation period or who had received extensions of time for service and still sought to serve the documents at the end of those extended periods. If the defendants were successful in those cases, then that would be the end of the claim and no further proceedings could be brought. That is not the case here because further proceedings could be brought in respect of the final statute bill served by the defendant. Nevertheless, it seems to me that the decisions of the Court of Appeal referred to by the parties are sufficiently wide that the presence or absence of a knockout blow in terms of limitation is not determinative. I refer in particular to the case of Kuenyehia & Ors v International Hospitals Group Limited [2006] EWCA Civ 21 where, for example, at paragraph 14, the Court contrasted the circumstances of that case with previous decisions and said that “such fine distinctions should not, in our view, be drawn in this area, where simplicity, clarity...
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