It never ceases to surprise me that there are many lawyers –
on both sides of litigation who do not fully understand the rules about when a Claim Form must be served. We all know that it has to be served within 4 months or the world
will end. There seems to be a mental
block which affects those who act for both claimants and defendants about when
such end will happen.
On the face of it the rule is straightforward. CPR 7.5 says
that, if you are posting the Claim Form by First Class, it must be posted ‘before 12.00 midnight on
the calendar day four months after the date of issue of the claim form’. So if I
issue a claim Form 1st November 2017 it has to be posted by midnight
on 1st March 2018. It doesn’t matter when it actually arrives. There
is no ‘deemed date’ as far as this deadline is concerned. If the Claim Form is
posted before midnight on the 1st March 2018 it is properly served…end
of!
So why does this fairly obvious rule cause such confusion? This is
because there is another date in CPR 6.4. This says that if a Claim form is
posted First Class it is ‘deemed served’ 2 days later. There is nothing like an
apparent contradiction in the rules to throw lawyers into a blind panic – we are
all quite obsessive after all. This particular rule is completely different. It is
nothing to do with deadlines for service. It is in fact the date from which the
time runs against the Defendant to file an acknowledgment of service or a
defence.
The issue has actually found its way before Master McCloud (she of
Mitchell fame) in the recent case of
Jones v Chichester Harbour Conservancy and Others [2017] EWHC 2270. She
spelt out the purpose of 6.4 in clear terms –
‘as to
the purpose of the ‘deemed date’ provisions in rule 6.14 those have to be given
an interpretation which gives them a meaningful function and in my judgment the
deeming provisions operate as a means to ensure that it is clear to the parties
what date is to be used for the purpose of calculating such things as the date
for service of acknowledgement of service or defence.’
So hopefully
we have cleared that one up and we can all sleep soundly in our beds again.
But what
about extensions? CPR 7.6 allows us to apply for an extension of time provided
we are still within the primary 4 months (in fact such extension can also be
agreed in writing). But when does the Claim Form have to be served following
such an order? This was the core issue in the Jones v Chichester case. The
claimant obtained an order extending the time for service of the Claim Form to 17th
January 2017. A dispute arose over what the Claimant was supposed to do by that
date. The claimant said that they had to post it by midnight on 17th
January under 7.5. The Defendant said this was different from the normal rule
and that they should have posted it on 15th January as it was deemed
served 2 days later. So they had missed the bus.
Master
McCloud decided in favour of the Claimant –
‘in this case the
application itself was seeking the exercise of the court’s powers to extend
time for compliance with rule 7.5 and .. it is plain that the court’s intention
in extending time for service was to extend time for compliance with rule 7.5.’
I think the lesson
learned from this case is to adopt a belt and braces approach and ensure that
the order extending time specifically refers to the requirements of 7.5 to
avoid any unnecessary insomnia.
It might also be helpful if those who draft the rules could spell all of this out in big letters preferably with pictures.