Thorne v Lass Salt Garvin
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE WYN WILLIAMS,Mr Justice Wyn Williams |
| Judgment Date | 28 January 2009 |
| Neutral Citation | [2009] EWHC 100 (QB) |
| Docket Number | Case No: QB/2008/APP/0597 |
| Court | Queen's Bench Division |
| Date | 28 January 2009 |
[2009] EWHC 100 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Wyn Williams
Case No: QB/2008/APP/0597
Mr Nigel Burroughs (instructed by Messrs Hodge Jones Allen Solicitors) for the Appellant
Mr Peter Kirby (instructed by Lass Salt Garvin) for the Respondent
Hearing dates: 20 January 2009
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.
Mr Justice Wyn Williams :
This is an appeal brought by the Claimant against the order of Master Rose dated 12 August 2008 in which he declared that the purported service of the Claim Form by fax on 6 June 2008 was invalid and ineffective and in which he refused to make an order dispensing with service. I also have before me an application to amend the Notice of Appeal. The proposed amendment, if permitted, would require this Court to decide a point not argued before the Master.
Background Facts
In late 2000 the Appellant instructed the Respondent to represent him in a dispute with his sister concerning the interpretation of their mother's will. Litigation ensued which was concluded in early 2002. The Appellant alleges that the Respondent was negligent in its conduct of that litigation. I know nothing about the merits of that allegation save that it is denied.
It is common ground that the Respondent acted for the Appellant in the litigation until about the beginning of 2002. Following the conclusion of the litigation there was no intimation of a claim by or on behalf of the Appellant against the Respondent. The first that the Respondent knew of a claim was when it received the Claim Form by fax on 6 June 2008.
The Claim Form was issued on 31 January 2008. By virtue of CPR 7.5 the final date for service of the Claim Form was 13 May 2008. On 29 May 2008 the Claimant sought an order extending time for the service of the Claim Form. Master Eyre granted an extension to 6 June 2008. In the same order he specified that the time for service of the Particulars of Claim should be extended to 4 July 2008.
On 30 May 2008 the Appellant contacted Miss Rachael Brown, a solicitor employed by Messrs Hodge Jones and Allen. A discussion on the telephone took place in which the Appellant informed Miss Brown that he had issued a claim against the Respondent on 31 January 2008 and that time for serving the Claim Form had been extended to 6 June 2008. Miss Brown told the Appellant that he should serve the Claim Form “now” and that he should then go to see her with as many papers as possible about his case. Other details of the conversation between Miss Brown and Appellant are contained in paragraphs 3 to 5 of Miss Brown's Witness Statement.
On 5 June 2008 the Claimant tried to speak to Miss Brown but she was away from the office on leave. She returned to work on 6 June 2008. On that day she telephoned the Claimant who informed her that he had not obtained any further time for serving the Claim Form and, in consequence, that it needed to be served that day. Miss Brown told the Appellant to serve the Claim Form and then come to her office.
At approximately 3.00pm on the afternoon of 6 June 2008 the Appellant arrived at the offices of Messrs Hodge Jones and Allen. In summary what then happened is that Miss Brown drafted a letter to the Respondent and faxed it to them at 3.15pm together with the Claim Form and the order made by Master Eyre. Prior to the fax there was no communication of any kind between Miss Brown for the Appellant on the one hand and the Respondent on the other.
On or about 13 June 2008 a partner in the Respondent firm signed a document entitled Acknowledgement of Service. There is a box on the form in which a Defendant is asked to state his full name if it is different from the name given on the Claim Form. The partner wrote:—
“We decline to acknowledge purported service by fax as it did not comply with the requirement of CPR 6.2 and Practice Direction 6 and the subsequent purported postal service was out of time”
An Acknowledgement of Service contains a number of tick boxes which need to be completed appropriately. They are:—
“1. I intend to defend all of this Claim
2. I intend to defend part of this Claim
3. I intend to contest jurisdiction”
Opposite each of those statements a box appears for the person completing the form to tick appropriately. The partner of the Respondent who completed the particular form ticked the box opposite the statement “I intend to defend all of this Claim” and wrote immediately beside it:—
“If it is deemed to have been served on time”.
The box opposite the statement “I intend to contest jurisdiction” was not ticked.
On 17 June 2008 an employee of the Court Service sent out the standard form to inform the Appellant that the Respondent had filed an Acknowledgement of Service. The form was sent to the Appellant because, at this stage, Messrs Hodge Jones and Allen were not on the record.
On 19 June 2008 Messrs Hodge Jones and Allen wrote to the Respondent in the following terms:—
“We refer to your letter of 13 June 2008 and your Acknowledgment of Service, the contents of which had been noted.
We enclose, for your attention, a copy of our letter to the High Court of even date, which we trust is self-explanatory.
We would like to reiterate that whilst we appreciate that your consent was not obtained prior to faxing our client's Claim Form, we do not believe that your firm has suffered any prejudice as a result and in this regard, we would be grateful if you would confirm whether it is your intention to make an application to strike out our client's claim.”
The letter addressed to the High Court of Justice contained the following paragraphs:—
“We have noted the Defendant's comments in relation to the service of our client's Claim Form and would respond as follows:-
We accept service of the Claim Form did not comply with CPR 6PD3 in that the written consent of the Defendant was not obtained prior to faxing the Claim Form on 6 June 2008 (for which we apologise), but confirm that this was a result of the shortness of time available to us to serve the Claim Form in time, our client only being able to attend our offices at 3.00pm that day. The letter to the Defendant was immediately prepared and in order to meet the 4.00pm deadline, the letter was faxed on completion. A copy of the fax confirmation sheet is enclosed.
However we note that the Defendant's headed note paper makes no reference to it not accepting the service by fax and believe that had we had sufficient time to request their written confirmation and for them to have faxed us the same, they would have agreed to service by fax in any event. We do not believe that any prejudice had been suffered by the Defendant in only being receipt of the faxed copy of the Claim Form by 6 June 2008.”
By letter dated 26 June 2008 Messrs Hodge Jones and Allen took a somewhat different stance. They wrote:—
“….in relation to the service of our client's Claim Form, we would draw your attention to the full wording of Practice Direction 3.1 in particular 3.1(2) which states that the “the following shall be taken as sufficient written indication for the purposes of paragraph 3.1(1)(a) a fax number set on the writing paper of the legal representative of the party who is to be served.” As a law firm yourself as well as the Defendant this naturally applies to your own headed note paper. In the circumstances, we believe that we have affected good service of our client's Claim Form in accordance with CPR 6.2 and intend to file the appropriate Certificate of Service. Please confirm that you will raise no objection to the same.”
The letter continued by seeking an extension of time for service of the Particulars of Claim. The letter provoked an immediate response from the Respondent. It rejected the application for an extension of time for serving the Particulars of Claim. The letter contained no express provision about whether or not the Respondent was pursuing any point about the service of the Claim Form but it did assert that there was a failure to serve the proceedings within the prescribed time limit thereby, at least impliedly, keeping the point alive.
On 4 July 2008 a Particulars of Claim and Schedule of Damage was served on behalf of the Appellant.
On 29 July 2008 Messrs Hodge Jones and Allen served upon the Respondent the application which was considered by Master Rose. The order sought in the application was in the following terms:—
“An Order dis-applying CPR PD6.2 to allow for effective service of the Claim Form on 6 June 2008 by facsimile pursuant to CPR 6.9”
At first blush, at the very least, the form of order sought would seem to amount to an acknowledgment that the Claim Form had not been served in accordance with CPR 6.2.
Was service of the Claim Form valid?
CPR 6.2 (1)(e) provides that a document may be served by fax or other means of electronic communication in accordance with the relevant Practice Direction. The relevant Practice Direction is 6PD.3. It provides:—
“Subject to the provisions of paragraph 3.3 below, where a document is to be served by electronic means –
(1) The party who is to be served or his legal representative must have previously expressly indicated in writing to the party serving -
(a) that he is willing to accept service by electronic means;
(b) the fax number, e-mail address or electronic identification to which it should be sent; and
(2) the following shall be taken as sufficient written indication for the purposes of paragraph...
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Mr Sean Kelly v Ralli Ltd
...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 r......