Personal Management Solutions Ltd and Others (Appellants/Claimants) v Gee 7 Group Ltd and Another (Respondents/Defendants)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin |
| Judgment Date | 09 March 2017 |
| Neutral Citation | [2017] EWCA Civ 339 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A3/2016/1730 |
| Date | 09 March 2017 |
[2017] EWCA Civ 339
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION, INTELLECTUAL PROPERTY
(MR JUSTICE ARNOLD)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Kitchin
A3/2016/1730
Mr N Caddick QC and Mr T St Quintin (instructed by McDaniel & Co) appeared on behalf of the Appellants/Claimants
Mr Y Kulkarni (instructed by RPC) appeared on behalf of the Respondents/Defendants
This is an application by the claimants, PG, for permission to appeal against the judgment of Arnold J given on 6 April 2016 and his consequential order dismissing their application for retrospective authorisation of service of the claim form by an alternative method pursuant to CPR Rule 6.15(2). Permission to appeal was refused on the papers by Floyd LJ by order dated 13 July 2016. PG have requested that this decision be reconsidered at an oral hearing which has come on before me today. PG have been represented at this hearing by Mr Nicholas Caddick QC, as they were before the judge.
The background is helpfully set out in Mr Caddick's skeleton argument and, so far as relevant, may be summarised as follows. In the course of earlier proceedings between PG and the defendants, G7, PG became aware of matters which led them to conclude that G7 had infringed their copyright. Their solicitors, McDaniel & Co, accordingly wrote to G7 raising this issue. By letter dated 12 January 2015, G7's solicitors, RPC, responded, stating that they were acting for G7 and asking that all correspondence be sent to them rather than to G7.
On 17 February 2015, McDaniel & Co wrote to RPC seeking pre-action disclosure so that PG could properly plead their claim for copyright infringement. On 15 March 2015, PG applied for that disclosure and on the same day issued but did not serve a claim form.
The application for pre-action disclosure came before Deputy Master Cousins on 2 June 2015 and, on being told of the existence of the claim form, ruled that he had no jurisdiction to hear the application. An appeal against that decision was dismissed by Morgan J on 10 December 2015.
In the meantime, PG decided to press on and draft their particulars of claim. The time for service of the claim form expired on Sunday, 5 July 2015. On the previous Friday, 3 July 2015, McDaniel & Co attempted to serve the claim form, together with the particulars of claim, upon G7 by sending them to RPC by DX and by fax. As the judge explained, the fax was sent in a transmission starting just before 4.00 pm and lasting for a little over 7 minutes. As the judge also noted, the transmission was therefore not complete until after 4.00 pm. It was RPC's evidence that they had no record of receiving that fax but there was no dispute that it was in fact sent. The DX copy of the claim form was not received by RPC until the following Monday. At some point after that, RPC brought the claim form to the attention of G7. Accordingly, the judge found that while it was true to say that the claim form did ultimately come to G7's attention, it did not do so until after the expiry of the validity of the claim form.
On 10 July 2015, RPC wrote saying that they were not instructed to accept service and that the claim form had not been served on G7 within the 4-month period of its validity. Shortly afterwards, G7 indicated that they intended to contest the jurisdiction.
In a further judgment given on 6 April 2016, the judge found that, properly construed, the correspondence between RPC and McDaniel & Co did not constitute a notification that RPC were instructed to accept service of the claim form. In so doing, the judge overturned a decision of the Deputy Master to contrary effect. PG have not sought to appeal against the judge's decision.
In the judgment the subject of this appeal, the judge then turned to the issue which has given rise to this appeal, namely whether PG were entitled to an order under Rule 6.15(2) to the effect that the steps which PG had taken to bring the claim form to the attention of G7 amounted to good service upon it. The judge directed himself by reference to Rule 6.15 and also Practice Direction 6A paragraph 9.2. He also set out the relevant principles to be applied upon such an application as explained by Floyd LJ in Barton v Wright Hassall LLP [2016] EWCA Civ 177. In that decision, Floyd LJ summarised the effect of a series of earlier decisions, including that of the Supreme Court in Abela v Baadarani [2013] UKSC 44, in the following terms at [19]:
"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 technical games, this will count against him: (Abela [38]).
viii) An appellate court will...
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