Mr Justice Edwards-Stuart in the TCC recently held that it was an “irregularity” when a claimant had served a claim form which was not sealed and did not bear the claim number.
An earlier judgment (Hills Contractors and Construction v Struth), by Mr Justice Ramsey, set out the reasoning in the following way. Under CPR 7.2(1), proceedings are started when the court issues a claim form at the claimant’s request, and under CPR 2.6(1), the court must seal the claim form on issue. Consequently, when CPR 6.3(1) sets out the requirements for serving a claim form, it is referring to the document issued and sealed by the court. On this basis, service of a photocopy of a claim form did not constitute good service in Hills Contractors.
When a claim form is amended, the amended version should be re-sealed by the court. In Cant v Hertz Corp, a claim form had been issued, then amended, then served, without the amended version having been re-sealed before service. Hacon HHJ, in the Chancery division, regarded this to be a breach in that the revised claim form served on the defendant had not been sealed. However, he considered that the breach was capable of being remedied under the court’s power to grant relief from sanctions under CPR 3.9.
It seems that the courts are generally willing to cure an irregularity in service, but I wouldn’t want to rely on this. You should always serve on each defendant an original, hard copy of the claim form which bears the court seal. If you don’t, the defendant may take the point, leading to the delay and costs associated with any application for strike out or relief from sanctions etc.
The recognised exception is where the claim form is served electronically or by fax, in which case paragraph 4.3 of Practice Direction 6A expressly states that it is not necessary, in addition, to send or deliver a hard copy. As electronic working is introduced in the English courts, this rule may be invoked more frequently with fewer claims being served in hard copy form.
We still haven’t seen the procedural rules governing the issue of claims using the new CE-File system (expected to be introduced in the Rolls Building courts before the end of the year). But it is anticipated that the rules will reflect those adopted in the TCC pilot under PD 51J – Electronic Working Pilot Scheme. This indicates that claim forms will be issued, sealed and returned in PDF format to the claimant for service. It is not clear whether parties will be able to request an original, sealed copy of the claim form, but it seems likely that electronic service of PDF versions will become more common and presumably CPR 6.3(1) will be interpreted accordingly.
Practical Law Dispute Resolution Janet CurrierSince publishing this blog, I was interested to see the decision in United Utilities Group plc v Hart (unreported). The Liverpool County Court held that the service by DX of a copy of a claim form was a defect capable of being remedied under CPR 3.10. Although decided on the basis of CPR 3.10 rather than CPR 3.9, the decision is consistent with the court’s approach in Cant v Hertz and other recent cases. Here, the claim had been issued out of the bulk claims centre in Northampton. The judge referred to the fact that solicitors needed to scan documentation onto their electronic systems to manage such claims and that electronic sealing is likely to become more common in future. It would be helpful for the rules to be updated to reflect these changes in practice.
