Oran Environmental Solutions Ltd v QBE Insurance (Europe) Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cockerill |
| Judgment Date | 11 May 2020 |
| Neutral Citation | [2020] EWHC 1271 (Comm) |
| Docket Number | Case No: CL-2018-000821 |
| Date | 11 May 2020 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 1271 (Comm)
IN THE HIGH COURT OF JUSTICE
OF ENGLAND AND WALES
COMMERCIAL COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice,
Rolls Building
Fetter Lane,
London, EC4A 1NL
Mrs Justice Cockerill DBE
Case No: CL-2018-000821
Mr David Uff (instructed by BPS Law) for the First Claimants
Ms Alison Padfield Q.C. (instructed by Beale and Company Solicitors LLP) for the Second Defendant
Hearing date: 11 May 2020
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.
Introduction
The Claimants operated a waste processing and recycling business. The Second Defendant was the Claimants' insurance broker. The claim arises out of a policy of insurance which incepted on 1 July 2012, and a fire at the Claimants' premises on 27 December 2012. Although the First Defendant insurer has made a payment to the Claimants under the policy, the First Claimant (who is the sole active claimant) contends that the payment would have been almost £9m higher if the Second Defendant had not breached its duty to act with reasonable skill and care.
The question before me is whether the claim form, asserting that claim for professional negligence against the Second Defendant, was effectively served during its temporal validity. If it was not, the claim form having been issued at the very limit of the limitation period, the claim will fail.
The issue manifests itself in the two applications on which I have today heard argument:
i) The Second Defendant's application that the court does not have jurisdiction to hear the claim because the claim form issued on 21 December 2018 was not validly served on it before its expiry which was at the latest at 4pm on 6 January 2020.
ii) The First Claimant's contingent application, which arises only if the first application succeeds, that time for serving the claim form be extended under CPR 7.6(1) and (3) because it has taken all reasonable steps to comply with CPR 7.5.
The First Application: Service of the Claim Form
Introduction
The claim form was sealed (and therefore issued) on 21 December 2018. The question is whether it was served within its period of validity as extended by agreement between the parties.
CPR 7.5(1) provides, under the heading “Service of a claim form”:
“(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.
Method of service
Step required
First class post, document exchange or other service which provides for delivery on the next business day
Posting, leaving with, delivering to or collection by the relevant service provider
Delivery of the document to or leaving it at the relevant place
Delivering to or leaving the document at the relevant place
Personal service under rule 6.5
Completing the relevant step required by rule 6.5(3)
Fax
Completing the transmission of the fax
Other electronic method
Sending the e-mail or other electronic transmission”
CPR 7.4 provides, under the heading “ Particulars of claim”:
“(1) Particulars of claim must –
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form”.
It is common ground that the First Claimant did not “complete the step required” under CPR 7.5(1) before 12.00 midnight on the calendar day four months after the date of issue of the claim form on 18 December 2018. The events with which this hearing is concerned occurred in early January of this year. This is because there were a number of consensual extensions of time.
The initial reason for this appears to have been that prior to issue of the claim form, the Claimants had not sent a pre-action protocol letter of claim to the Second Defendant. Indeed, it was not until 21 March 2019, three months into the period of validity of the claim form, that Markel Law, who were then acting for the Claimants, sent a pre-action protocol letter of claim to the Second Defendant.
In the letter, Markel Law said that the Claimants had issued a claim form on 21 December 2018 to protect their position on limitation, and that by their calculation the deadline for serving the claim form and particulars of claim was 19 April 2019. They said that it would almost certainly be after this date that the parties had completed the various steps required under the pre-action protocol, and proposed that the parties agree a stay of proceedings for three months.
On 28 March 2019, RPC wrote to Markel Law and said that they were instructed to act on behalf of the Second Defendant, agreed to a stay of proceedings for three months as proposed by Markel Law, and asked them for a draft consent order for approval.
A draft consent order was provided by Markel law on 3 April 2019. This provided that the claim be stayed until 4pm on 5 July 2019, and that: “the Claimants serve the claim form and file and serve particulars of claim by 4pm on 19 July 2019”.
Beale & Co subsequently took over conduct of the matter on behalf of the Second Defendant. On 16 April 2019, they informed Markel Law that they were willing to agree the consent order in the terms proposed, and asked for a draft consent order substituting their details for RPC's. Markel Law provided this on 16 April 2019. The operative parts of the draft consent order were unchanged from the draft provided on 3 April 2019.
Beale & Co signed the draft consent order to signify agreement and returned it on the same date. Of course, by 16 April 2019, the four-month period for completion of the required step under CPR 7.5(1) had almost expired.
The consent order was made by the Court in the terms of the draft on 30 April 2019. Time for service of the claim form had expired by the date on which the consent order was made and it appears that the effect of the order was therefore to retrospectively extend time for service of the claim form to 4pm on 19 July 2019; certainly the contrary was not contended before me.
The order dated 30 April 2019 was the first of four consent orders agreed between Markel Law and Beale & Co. The operative parts of each consent order were identical. In particular each contained a paragraph stating: “the Claimants serve the claim form and file and serve particulars of claim by 4pm on [date]”
The fourth and last of the consent orders agreed by the Second Defendant and made by the Court was dated 5 December 2019. By paragraph 2 of the consent order dated 5 December 2019, the Claimants were ordered to “ serve the claim form and file and serve particulars of claim by 4pm on 6 January 2020”.
On Friday 20 December 2019 — just before the Christmas holiday — BPS Law were first instructed to act for the Claimants. Ms Sharp of BPS Law says that she saw and noted the Order. 6 January 2020 was for many people the first day back at work after the vacation. On the afternoon of that day (and before 4 pm) Ms Sharp did three things.
i) First, she sent the claim form and particulars of claim by special delivery to Beale & Co, the solicitors who had been corresponding with the Claimants' solicitors for the best part of a year.
ii) Second, she replicated this exercise by fax and by email.
iii) Third, she sent the same documents to the Second Defendant direct — by special delivery and also by email to the Second Defendant's “info” email address on its website.
It is said on behalf of the First Claimants that this combination of actions was good service under the rules. Ms Padfield QC, for the Defendant, begs leave to differ, and has set about demonstrating issues with each of these methods.
Discussion
In the event Mr Uff for the First Claimants took a very sensible decision not to pursue the argument that good service had been effected by any other means than by postal service on the Second Defendant. I deal with those points only to demonstrate how entirely correct that concession was.
Service on Beale & Co and by email
In order to be validly served, a claim form must be served in accordance with CPR 6.3. This provides, so far as material, under the heading “Methods of service”:
“‘(1) A claim form may (subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties) be served by any of the following methods –”
(a) personal service in accordance with rule 6.5;
(b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;
(c) leaving it at a place specified in rule 6.7, 6.8, 6. 9 or 6.10;
(d) fax or other means of electronic communication in accordance with Practice Direction 6A; or
(e) any method authorised by the court under rule 6.15.
(2) A company may be served –
(a) by any method permitted under this Part; or
(b) by any of the methods of service permitted under the Companies Act 2006.’
CPR 6.7 to 6.9 provide as follows, so far as material:
“ Service on a solicitor or European Lawyer within the United Kingdom or in any other EEA state
6.7
(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), where –
(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim...
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