You’ve been Served, or have you…….
You’ve been Served, or have you…….No, it would seem as the Court of Appeal rules unsealed Claim Forms were not good service, backing a High Court decision that service of amended Claim Forms which were ‘served’ unsealed could not constitute good service.
In Ideal Shopping Direct Ltd and Others v Mastercard Incorporated and Others [2022] EWCA Civ 14 Judges, Sir Julian Flaux, Chancellor of the High Court, Lady Justice Elisabeth Laing and Lord Justice Birss heard an appeal by the Claimants as to whether service of an unsealed amended Claim Form is ‘good service’. In addition, if found not to be ‘good service’, whether the failure was a procedural error capable of rectification under CPR 3.10.
On 13 January 2022 the Court of Appeal heard the Claimant’s appeal, the basis of the case was a number of claims for breaches in competition law alleged to have been committed by Visa and Mastercard. One group cited infringements of Article 101 and Article 102 of the Treaty on the Functioning of the European Union (TFEU) or the comparable provisions in Articles 53 and 54 of the Agreement on the European Economic Area (the EEA) or in Chapter I and Chapter II of the Competition Act 1998. A second group of claimed only infringements of Article 101 of TFEU, Article 53 of the Agreement on the EEA and Chapter I of the Competition Act 1998.
Amended ‘claim forms’ were ‘served’ after 16.30 on the final permitted day. The Defendants Solicitors, for Visa and Mastercard took exception to the process and contended that the sending of the unsealed amended Claim Forms did not constitute ‘good service’. It was acknowledged that sealed Claims Forms were subsequently served within nine days of the deadline.
n the original finding, that the documents served in 2020, did not constitute Claim Forms as they were unsealed, thereby translating to no claim form having been served within the permissible time frame. Solicitors for the Claimants sought to appeal the decision contending that the initial decision was inconsistent with the provisions of PD510 raising uncertainty for parties engaging electronic working and averring that the Court had discretion within rule 3.10 of the Civil Procedure Rules to grant relief where there had been an error of procedure that did not otherwise invalidate proceedings.
Leading the judgement and supported by his peers, Sir Julian Flaux said the Claimants and their Solicitors could have avoided or remedied the position by sending the amended Claims Forms at an earlier juncture than the last day of permitted service or by seeking an extension of time or even serving the original Claim Forms, and then the amended forms following sealing and could even have asked Court Officers to expedite the same.
The Judge said the issue was not caused by electronic filing but ‘by their (Claimants Solicitors) failure to take one or other of those courses and by their solicitors’ mistaken belief that service of an unsealed amended Claim Form would be good service’.
In dismissing the Appeal Sir Flaux said the general rule was that a Claim Form must be sealed before it can be validly served, and any abrogation would need to be ‘expressly stated’ in the practice directions.
Turning to the scope of rule 3.10, Sir Flaux said the Court was being asked to override a specific provision without good reason being shown. He stated that this caveat could not be relied on to ‘bypass’ the requirements of service and added,
‘Even if relief under rule 3.10 were available in principle, which I have held it was not, I would not exercise the discretion to grant relief in favour of the appellants.’
Even in an ever-changing world of electronic working the action of prevention is better than seeking a cure to an avoidable situation.
Here at PIC we offer a complete range of Costing Services, we are always happy to tailor our service to the demands of our Clients’ practices and aim to be flexible and approachable whilst providing the highest level of professional service.
Lisa Delf, Costs Consultant
26.05.22