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Checking if proceedings have been served correctly: Tips for Trusts and Lawyers

Published 23 August 2017

When receiving served proceedings, it can be easy for Trusts to simply file an Acknowledgment of Service without scrutinising how the documents were received. A recent clinical negligence claim against a Trust was struck out on the grounds that the Claimant's representatives had not affected service properly. The Claimant's representatives had made a catalogue of errors leading to the Court using its discretion to strike out the claim and dismiss the Claimant's Application for a retrospective extension of time for service of proceedings.

This case highlights that following procedure is crucial; a failure to follow procedure can be fatal to your case, whether you are the Claimant or the Defendant.

What documents did the Trust receive?

A Claim Form was issued in October 2015. Whilst a Claimant would usually only have 4 months to serve the same, the Claimant's representatives had successfully obtained an extension of time from the Court until 4 June 2017. The Trust was not aware of this as no Applications/Orders had been sent to them and they only first became aware of this when they received a Letter of Claim dated 19 May 2016 which referred to the extension obtained. The Trust then received, on 3 June 2016:

  • An unsealed Claim Form (where the  identity of the Defendants, the date of the incident and the value of the claim were amended as compared to the sealed Claim Form), together with the Particulars of Claim, a Notice of Funding and a Response Pack; and

  • A letter accompanying the proceedings confirming that "drafts of proceedings" were enclosed and that they "would be serving" the documents imminently. 

What didn't the Trust receive?

  • An email said to have been sent by the Claimant's representatives 2 days after the above mentioned letter enclosing the same documents "by way of service" in the covering email.  The covering letter still referred to "drafts of proceedings".

  • A sealed copy of the Amended Claim Form, or indeed the Claim Form (before the amendments were made).

  • A Schedule of Loss.

What did we do?

After liaising with the Trust, the Court and the Claimant's representatives to gather various pieces of information, an Application to strike out the claim was made. The rule provides that the Court may strike out a statement of case if it appears to the Court that there has been failure to comply with a rule, Practice Direction (PD) or Court Order.

What issues did we raise in support of our Application?

  • We relied on Asia Pacific (HK) Ltd v Hanjin Shipping Co Ltd [2005] EWCH 2442 (Comm.), November 7, 2009 referred to in the White Book. This states that:

"When a claim form is delivered to the recipient in a manner provided for by the rules it is, in my view, served unless it is made clear by the person who delivers is that, whilst he is delivering the form by such method, he is not in fact serving it" (emphasis added).

We argued that the letter was clear in that it was not purporting to effect service.

  • As to the email said to have been sent two days later and in compliance with the Order confirming by when proceedings should be issued, whilst the covering letter had the correct email addresses for the Trust, the email addresses were incorrectly spelt due to typographical errors. Therefore, they were not received.

  • We relied on CPR Practice Direction 6A providing that where a document is to be served by electronic means, that party must have indicated that it is willing to accept such service and provide the relevant details, as set out by the rules. This indication was never given and so service by email could not have constituted valid service, even if received.

  • A sealed Claim Form had not been served, which is a requirement confirmed by the case of Hills v Contractors and Construction Ltd v Struth [2014] 1 WLR 1.

  • The Claim Form had been substantively amended as set out above. Despite this, the Claimant's representatives had not re-verified the document with a Statement of Truth as required by CPR PD 17.

  • The Claimant did not serve a Schedule of Loss in breach of CPR PD 16.

The Court's Judgment

When the District Judge exercised her discretion to strike out the claim and refused the Claimant's Application for a retrospective extension for service of proceedings, she made reference to the fact that an ex-parte extension of time for service of proceedings had already been given and the claim appeared to be at the end of the limitation period. The incident occurred in June 2012, the Claim Form was issued in October 2015 (albeit against the incorrect Defendants) and then service was attempted on 31 May 2016. The Order allowed the Claimant until 4 June 2016. This seemed to have an impact on the decision.  

Essentially, the District Judge was persuaded that the Claimant's representatives had made a catalogue of errors and she considered it was not a case where she could exercise her discretion to allow a further extension of time retrospectively. She said that her discretion should not be used to "correct a number of errors made by the Claimant's solicitors in their last minute attempt to serve a significantly amended Claim Form…"

Why is this case important?

When receiving served proceedings, it can be easy for both Trusts and their legal advisors to simply file an Acknowledgment of Service without scrutinising how the documents were received. However, on the face of it, it could have been assumed that service had been affected properly, particularly if only one of the errors had been noted. In relation to the email, copy emails had to be requested from the Claimant's representatives to identify the error. Had the covering letter provided by the Trust been relied upon (which had also been received in the post), we would not have identified the error made by the Claimant's representatives.

It may be that each error on its own may have been insufficient to consider making a strike out Application. However, a detailed review revealed a catalogue of errors which we felt amounted to sufficient to justify the Application. The errors were seen as serious enough by the Court to strike out the claim.

This case highlights that following procedure is crucial; a failure to follow procedure can be fatal to your case, whether you are the Claimant or the Defendant.

For further information, or to discuss this matter in more detail, please contact Heather Durston-Hillyer on 01962 705513 or email hdhillyer@dacbeachcroft.com.

Authors

Heather Durston-Hillyer

Heather Durston-Hillyer

Winchester

+44 (0)1962 705513

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