High Court refuses to validate defective service where claim form sent to wrong email address

The High Court has held that there was no good reason to validate service retrospectively, or extend time for service, where the claimant's solicitors had purported to serve the claim form by emailing an unsealed copy to the correct address but the sealed copy to incorrect addresses: R. (on the application of The Good Law Project) v Secretary of State for Health and Social Care [2021] EWHC 1782 (TCC).

The defendant had agreed to accept service by email to a specified email address. The claimant had sent a copy of the unsealed claim form to that address shortly before it was issued, but subsequently sent the sealed claim form only to the email addresses of the individuals dealing with the matter.

The court held that it had no power to order that sending the unsealed document constituted valid service, using its powers to rectify procedural irregularities. It also found that there was no good reason to hold that sending the sealed claim form to the other email addresses should be authorised as an alternative method of service, or to grant a retrospective extension of time for service.

The decision highlights the strict approach the court takes to the rules governing service of the claim form. The need for a "bright line rule" identifying the exact point at which service takes place means that the court will not necessarily exercise its power to validate irregular service simply because it can be shown that the actions taken did bring the contents of the claim to the defendant's attention.

The outcome can be contrasted with another recent case where a document served by email was sent to the wrong email address – but in that case was instantaneously auto-forwarded to the right address (Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co [2021] EWHC 1205 (QB)). The court held that that was invalid service but was prepared to validate service retrospectively. However, the document in that case was a notice of commencement of detailed assessment proceedings rather than a claim form, and the court approached the application on the basis that "the particular considerations engaged by applications relating to the service of originating process" did not apply.

At a time when it is becoming increasingly common for defendants to agree to accept service by email, the Good Law Project decision is a reminder that the apparent informality of that mode of communication should not distract from the fact that it is still crucial to comply strictly with the rules, including which email address to use.

The decision is subject to an appeal to the Court of Appeal, which is due to be heard by the end of October 2022.

Background

The claimant sought to commence judicial review proceedings challenging the UK government's decisions to award certain contracts for the supply of personal protective equipment. The contracts had been entered into in mid-2020 but were only published on the statutory public register of such contracts on 29 March 2021.

Under the Civil Procedure Rules (CPR) specific to judicial reviews of such public procurement contracts, the limitation period for issuing a claim was (effectively here) 30 days from the contract's publication, and any claim was required to be served within 7 days of being issued (CPR 54.7).

On 8 April 2021, the claimant's solicitors sent a pre-action letter to the Government Legal Department (GLD), emailed to the following addresses:

1. TheTreasurySolicitor@governmentlegal.gov.uk; and
2. newproceedings@governmentlegal.gov.uk.

An officer of the GLD, Mr Olsen, replied confirming GLD's instructions to accept service. The letter stated:

"We ask that in future all correspondence in this matter is sent by email to the Government Legal Department marked for the attention of Warrick Olsen… copying the GLD individuals included in the email attaching this letter."

The footer of the email by which the letter was sent notified recipients that the GLD accepts service by email and directed them to a government webpage entitled "Serve the Treasury Solicitor with legal proceedings", which stated:

"New Legal Proceedings which are required to be served upon The Treasury Solicitor can be served as follows:

By email at: newproceedings@govermentlegal.gov.uk for all new legal proceedings issued in the UK except for new immigration proceedings. …

The email addresses above are for the service of new proceedings only: any other correspondence addressed to it will be deleted unread. For all proceedings .. once a GLD case officer has been allocated to the case all subsequent service ... should be effected on their, or any nominated successor's, GLD email address."

In subsequent correspondence about the claim, Mr Olsen repeated: (i) the request that future correspondence in the matter be sent to the GLD marked to relevant individuals' attention; and (ii) the advice that new legal proceedings required to be served on the Treasury Solicitor could be served via email to the "newproceedings" address (with a request that any such email be also copied to the relevant individuals).

On 27 April 2021, the claimant lodged the claim form with the court registry and emailed an unsealed copy to the "newproceedings" email address "by way of service", with copies to the GLD individuals.

The following day, the court issued the claim form, with the court seal and claim number. The same day, the claimant's solicitors emailed the sealed claim form to the named GLD individuals. Mr Olsen confirmed receipt. The sealed form was not sent to the "newproceedings" email address.

On 6 May 2021 (the day after the expiry of the 7 day period to serve the claim form), the GLD raised the issue of the validity of service. The claimant's solicitors did not acknowledge that there had been any irregularity, but the same day did email the sealed copy to the "newproceedings" email address.

The claimant subsequently applied for:

1. an order that, pursuant to CPR 6.15, the steps already taken by it to bring the claim form to the defendant's attention constituted good service; or
2. alternatively, an extension of time to serve the claim form.

The defendant applied for the claim form to be set aside on the basis that the court was without jurisdiction to hear the claim because it was not served within the time allowed by CPR 54.7.

Decision

Mrs Justice O'Farrell dismissed the claimant's applications and set aside the claim form.

Procedural irregularity or invalid service

The court rejected the claimant's argument that the absence of a court seal and number on the unsealed claim form was a procedural irregularity which the court could correct under its general powers to cure errors of procedure (CPR 3.10).

The effect of CPR 3.10 is to empower the court to hold that a particular procedural error "does not invalidate any step taken in the proceedings". It could not operate here because, when the unsealed claim form was sent, there were no proceedings in existence. The court observed that recognising retrospective service prior to commencement of proceedings would lead to "procedural chaos".

Service by alternative method

The claimant accepted that the sealed claim form was not served in accordance with the rules (ie to the email address specified by the defendant's solicitors) but asked the court to authorise the actions it had taken as an alternative method of service under CPR 6.15.

The ambit of CPR 6.15 and the principles to be applied to applications for relief from mistakes in service of a claim form were considered by the Supreme Court in Barton v Wright Hassall LLP [2018] UKSC 12. The main relevant factors were identified by the Supreme Court as: (a) whether the claimant has taken reasonable steps to effect service in accordance with the rules; (b) whether the defendant was aware of the contents of the claim form within the time limit for service; and (c) whether the defendant would suffer prejudice by retrospective validation.

Here, there was no dispute that the claimant's actions had brought the existence and contents of the claim to the defendant's attention before the service deadline. However, the court noted the Supreme Court's observation that that factor will usually be a necessary but not sufficient condition to justify a departure from the rules. The service of originating process can be distinguished from other procedural steps because it is the act by which the defendant is subjected to the court's jurisdiction. For that reason, one of the purposes of the rules is to set a "bright line" identifying the exact point at which that takes effect – which will be relevant to when time stops running within any limitation period and to the timeline for subsequent steps in the proceedings.

A corollary of that was that it could not be said here that the defendant would suffer no prejudice by the validation of the defective service. Following the approach taken in Barton, the court accepted that the defendant could be seriously prejudiced by the potential loss of an accrued defence under the limitation period.

Finally, the claimant could not be said to have taken reasonable steps to serve the sealed claim form in accordance with the rules, because it had not taken any step to attempt to send it to the specified email address within the stipulated period.

Weighing up those factors, the claimant had not established good reason for the court to exercise its power under CPR 6.15.

Extension of time

The court noted that, if the provisions for the extension of time for service in CPR 7.6 were applicable, the pre-conditions for a retrospective extension would not be satisfied because, as found, the claimant had not taken all reasonable steps to serve in accordance with the rules. However, the court accepted that CPR 7.6 did not apply because it was concerned with service of a claim under CPR 7.5, rather than a judicial review claim under CPR 54.7. There is no corresponding provision specific to service under CPR 54.7.

The claimant submitted that it was therefore open to the court to extend time for service of the claim form under the court's general management powers in CPR 3.1(2)(a), having regard to the guidelines in Denton v White [2014] 1 WLR 3926 (considered here). The judge dealt with that submission briefly: applying the Denton test to the findings already made supported the conclusion that it would not be appropriate to extend time for service. A further material circumstance was the very tight timeframe to challenge the lawfulness of such public procurement decisions, and for the service of such claims (noting that the 1 day delay needed to be viewed against the 7 day benchmark).