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High Court rule service of Claim Form to be ineffective

Piepenbrock v Associated Newspapers [2020] EWHC 1708 is another case concerning where and when service may occur on the Defendant’s solicitors. The facts are similar to the Court of Appeal case of Woodward v Phoenix Healthcare Distribution (which Lexlaw were instructed on). The Claimant, a litigant in person, purportedly served the Claim Form on the last day of its four month validity period via email on the Defendants’ solicitors, who had not confirmed whether they were authorised to accept service. This amounted to a failure to effect service of the Claim Form. Applications to the Court to validate service were refused and the claim dismissed highlighting the dangers of ‘DIY litigation’ and the importance of instructing a specialist litigation team.

Background

Whilst the background to this defamation claim is inconsequential to the issue of service of a claim form, it has been briefly summarised below:

The underlying claim in this matter related to alleged harassment of the Claimant during the course of his employment with the second Defendant. That claim was initially dismissed by Justice Nicola Davies on 5 October 2018 who determined that the psychiatric damage caused to the Claimant was not reasonably foreseeable. 

Following this judgment, the Daily Mail published an article on 12 October 2018 titled: “‘He’s a master manipulator’: Professor who put himself forward as a MeToo martyr after being accused of impropriety by spurned assistant is not what he seems, associate claims”. A similar article was also published in the print edition of the Daily Mail on 13 October 2018.

Prior to the publication of that article, the Claimant’s wife (Prof. Sophie Marnette-Piepenbrock) had emailed the Daily Mail on 12 October 2018 threatening libel proceedings if that article was published; her emails went unanswered. On 8 October 2019, the Claimant’s wife sent an 11-page letter to the First Defendant’s editor (Mr Grieg) alleging that the Claimant had been seriously defamed by the article and seeking its immediate removal, together with a public apology, damages and the Claimant’s legal costs. 

Subsequently, the Claimant, as a litigant in person, attended the Royal Courts of Justice and issued the Claim Form on 11 October 2019. While he was given the option to have the Claim Form served by the Court, he chose to serve it himself but did not do so immediately. 

The Claimant’s wife emailed the Defendants on 10 February 2020 (and copied in the Defendants’ solicitors) purporting to serve the Claim Form and Particulars of Claim. The Defendants’ solicitors contested the Court’s jurisdiction to deal with the claim on the basis that the Claim Form had not been validly served during the four-month validity period. 

Time for service

The Court has tirelessly reiterated that there are no exceptions made for litigants in person, who must comply with the same pre-action protocols and procedural rules as solicitors, as held in the similar case of Barton v Wright Hassall

Under CPR 7.5, the Claimant had four months from the date of issue of the Claim Form to serve the Claim Form on the Defendants. Therefore, service needed to be effected by midnight on 11 February 2020. It was clear in this instance that the Claimant had therefore not complied with this Rule, as he subsequently sent the Claim Form via post on 11 February 2020, thereby the date of service would be 13 February 2020 (per CPR 6.26).

Upon whom the Claim Form must be served

The Court again dealt with this issue swiftly as CPR Part 6 is clear upon whom a Claim Form must be served.

For service to be deemed effective on a firm of solicitors, the conditions in CPR 6.7 below must be true:

(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), where –

(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or

(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction,

the claim form must be served at the business address of that solicitor.

In any event, none of the Defendants had provided their solicitors’ addresses as addresses to which the Claim Form could be served. Furthermore, the Defendants’ solicitors had not notified the Claimant that they were instructed to accept service on behalf of the Defendants, whether by email (as permitted by CPR 6.3(1)(d)) or at all. 

Therefore, the requirements of CPR 6.7 had not been met, and so the Claim Form was deemed not to have been validly served on the Defendants. 

In the case of the Third Defendant, where they have not given an address at which they will accept service, CPR 6.9(2) provides a table which must be adhered to in order to successfully serve the Claim Form. Again, this Rule was not complied with and the Claim Form was deemed to not have been validly served on her. 

Whilst the Claimant in this instance was a litigant in person, had he instructed a solicitor or direct access barrister, then the failure to serve the Claim Form would amount to professional negligence. This would give the Claimant another avenue, following this dismissal, to seek damages.

Extension of time?

The question then arose as to whether the Claimant should be relieved of the consequences of invalid service of a Claim Form. Justice Nicklin looked at the potential applicability of CPR 7.6 in this case on the issue of an extension of time for service of the Claim Form. 

The critical factor when determining if an application under CPR 7.6 will be successful is the efforts the claimant has taken to serve the Claim Form during the whole four month period of its validity (Hallam Estates Ltd -v- Baker [2012] EWHC 1046 (QB) [18] per Tugendhat J). There must be a “good reason” for the failure to properly serve the Claim Form (Hashtroodi -v- Hancock [2004] 1 WLR 3206 [19] per Dyson LJ). In this instance, Justice Nicklin held that not understanding the law of defamation and preparing for two other hearings did not constitute “good reasons” for the failure to serve. 

Other applications

Justice Nicklin dealt with the Claimant’s various other applications, namely orders under CPR 6.16, 3.9 and 3.10, swiftly. 

For the application of an order dispensing with service of a Claim Form under CPR 6.16, the case must be “truly exceptional” (Olafsson -v- Gissurarson (No.2) [2008] 1 WLR 2016 [21] per Sir Anthony Clarke MR), which J. Nicklin determined it was not. 

The Claimant applied for relief from sanctions under CPR 3.9, which was refused on the grounds that there were no sanctions to award in this instance. The obstacle in this claim was that the limitation period for defamation and malicious falsehood had expired. 

Finally, the Claimant sought the rectification of an error of procedure under CPR 3.10. Upon an in-depth analysis of the case law (referenced below), J. Nicklin determined that the comments made in these cases, as to whether CPR 3.10 can validate and rectify an error in serving a Claim Form, are strictly obiter and the consistent line of authority suggests that CPR 3.10 cannot and should not be used to rescue a claimant in these circumstances. 

The implications of leaving service of a claim form until the last minute

Justice Nicklin reiterated that it is very “unwise” for any Claimant to adopt a non-engagement approach, which as in this case, can cause your claim to be dismissed. Justice Nicklin also noted that, as long as defendants do nothing to mislead or obstruct, they can hardly be criticised if they decided to follow Napoleon’s advice ‘not to interrupt an enemy when they were making a mistake’, thereby restating the argument from Woodward -v- Phoenix healthcare Distribution Ltd [2019] EWCA Civ 985 [44-47] that there is no duty on a defendant to warn a claimant about failure to validly serve a Claim Form.

This judgment serves as a stark reminder, to both litigants in person and solicitors alike, that strict adherence to the CPR is vital and the consequences of failing to do so can be fatal to any litigation, which is why you should instruct specialist litigation solicitors. Had the Claimant done so in this matter and the solicitor then failed to serve the Claim Form, there would be strong grounds for a professional negligence case which would enable him to seek damages from them.

You can read the full judgment here.

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