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Monday, 30 October 2017

There is a time for everything - especially serving Claim Forms

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.


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