In Chehaib v. King’s College Hospital NHS Foundation,[1] the High Court of England and Wales dismissed the claimant’s application for relief in respect of a claim form that had expired, having been ineffectively served via email without permission. While the master found she was bound by the Civil Procedure Rules (CPR) and case law to dismiss the application for relief, she suggested that it might be time to review the rules on service of proceedings to allow for service via email without the need for permission.
Background
The claimant had issued proceedings against three defendants for damages for alleged clinical negligence. The claim was issued shortly before expiry of the relevant limitation period, and several extensions of time for service of proceedings were subsequently agreed and approved by the court. When agreeing to the fourth and final extension of time, the second defendant’s lawyers stated that they would only accept service of proceedings via post and not by email.
Despite the instructions, on the final day of the validity of the claim form, the claimant’s lawyers emailed the proceedings to the second defendant’s lawyers. When made aware of the error, they sought to re-serve proceedings by post and made an application for relief from sanctions.
The application
The claimant sought to argue that they had used a permitted method of service (email) but in the wrong circumstances (without the second defendant’s permission) for which there is no rule of prohibition, nor one dedicated to rectification. Accordingly, so they argued, they found themselves in a position totally uncatered for by the CPR. Nevertheless, they sought relief pursuant to three provisions of the CPR:
- CPR 3.9, the court’s general power to grant relief from sanctions.
- CPR 3.10, the court’s general power to rectify matters where there has been an error of process.
- CPR 6.15(2), the court’s power to order that a step already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
The High Court’s decision
The master dismissed the claimant’s ‘somewhat novel’ argument that they had used a permitted method of service in the wrong circumstances and were in a position uncatered for by the CPR as ‘an exercise in semantics’. Turning to the three specific provisions of the CPR, the master found against the claimant in respect of each.
In respect of CPR 3.9, there was no authority where this rule had been successfully deployed to achieve relief where a claim form has not been validly served. Further, even if the master was minded to consider the application under this rule, which would involve applying the well-known test for relief from sanctions set out in Denton v. TH White Ltd,[2] the procedural rules governing service of the claim form are ‘bright line rules’ requiring stricter observance than many other rules – the breach of which are serious and significant. Moreover, there was no good reason for the mistake, nor proper explanation for it, and looking at all the circumstances of the case, it was fair to dismiss the claimant’s application.
In respect of CPR 3.10, the master turned to the notes in the White Book at 3.10.1 that state, ‘it is now firmly established that this general power cannot be used to correct or waive errors such as the late service or defective service of a claim form’. While the claimant had identified two authorities where this rule had been successfully relied upon to remedy defects in service of a claim form, the master found that the very specific and unusual factual matrices of those cases were entirely different to the claimant’s circumstances.
Lastly, in respect of CPR 6.15(2), the master stated that the relevant considerations have been well-established by the Supreme Court, namely:
- Have reasonable steps to effect service been taken by the claimant?
- Was the defendant aware of the claim?
- Would there be any prejudice to the defendant should the application be allowed?
The claimant had (wisely) not sought to argue that reasonable steps had been taken, but submitted that the defendant was fully aware of the claim and had complained of no prejudice. The master rejected these arguments, noting that numerous courts that have examined the issue of what to do where service has not been perfected prior to expiry of the limitation period have been keen to express the view that CPR 6.15(2) should not be used to override a statutory limitation period, and that the defendant is under no obligation whatsoever to assist the claimant who has missed the deadline. Depriving a defendant of a limitation period is clearly prejudicial. An application under this rule made when a limitation period has expired could only be successful in ‘exceptional’ circumstances. There was nothing exceptional about the circumstances in this case.
The application for relief from sanctions was therefore dismissed.
Takeaway
While the rules for service are well established and the decision is unsurprising, the judgment is notable in that the master voiced some discontent about the rules she found herself bound by. As she observed, law firm practice has evolved considerably over the last decade, working practices have moved on from the days where lawyers would only communicate through hard-copy materials, and the use of email has become the prevalent form of communication in litigation. The master suggested that the timing might be right for a review of the rules on email service. The suggestion is sensible – a review is long overdue.
[1] [2024] EWHC 2 (KB).
[2] [2014] EWCA Civ 906.
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