We recently received a query through our Ask service on the interpretation of CPR 6.14 and how to correctly calculate the deemed date of service of the claim form. At first glance, I thought that the answer was obvious, but as I considered the issue more closely, I realised that there was in fact room for argument and that perhaps the CPR is not as clear on this point as it could be.
The question we received was as follows:
“In relation to the deemed date of service of a claim form, pursuant to CPR 6.14, an opponent has argued that the reference to the ‘second business day after completion of the relevant step’, as set out in CPR 6.14, means that only the second of the two days must be a business day. Therefore a claim form sent by first class post on a Friday would be deemed served on the following Monday (i.e. counting one non-business day and one business day). We would be interested to hear if you have a view on this interpretation of CPR 6.14. It has always been our understanding that “deemed to be served on the second business day after completion of the relevant step” means (in the interests of certainty) two business days after the relevant step has been taken. To use the same example as above, our understanding is that a claim form sent by first class post on a Friday would be deemed served on the following Tuesday.”
My initial reaction was that in order to calculate the deemed date of service, the day on which the relevant step is taken to serve the claim form does not count and the claim form is deemed served two business days after this, with both days being business days. This would mean that a claim form sent by first class post on a Friday would be deemed served the following Tuesday. However, after comparing the wording of CPR 6.14 with that in CPR 6.26 (deemed service for documents other than the claim form), along with the worked examples in PD6A.10, I realised that it is also arguable that the deemed date of service could be (in this example) Monday. I explain the reasons for my view in more detail in my answer to this query.
In summary, CPR 6.26 (deemed service for documents other than the claim form) provides that for service by DX (method 2), the deemed date of service is:
“The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.”
There is a similar provision for service by first class post (method 1).
CPR 6.26 refers to worked examples set out in PD6A.10. Example 2, which relates to service by DX, confirms that for the purpose of CPR 6.26, the first day after the document is sent by DX does not have to be a business day, it is only the deemed date of service which must be a business day:
“Where the document is left in a numbered box at the DX on a Friday (a business day), the day of deemed service is the following Monday (a business day).”
I thought it would be odd if the approach to calculating the deemed date of service for CPR 6.14 was different from that in CPR 6.26. The intention in CPR 6.26 appears to be to ensure only that the deemed date of service always falls on a business day, and it does not matter whether the first day is a business day or not. If you apply the CPR 6.26 approach to CPR 6.14, then (in this example) the deemed date of service would be Monday.
On the other hand, it could also be argued that if the intention was for CPR 6.14 and CPR 6.26 to work in the same way, then the wording of CPR 6.14 would have mirrored that in CPR 6.26 and simply referred to “the second day”, rather than the “second business day” and then clarified that the second day must be a business day. The use of the words “second business day” in CPR 6.14 arguably implies that both days must be business days. This would mean (in this example) the deemed date of service would be Tuesday.
I decided that some expert guidance on this issue would be welcome and the obvious person to turn to was Steven Whitaker, former Senior Master, who chaired the sub-committee that drafted CPR 6.14. Helpfully, Steven’s recollection is clear that there is no doubt the intention was (and is) that there should be two business days counted and that service should be deemed on the second one.
Steven considers that the wording “second business day” is clear enough to show that there needs to be a “first” and a “second” business day. The second is the second of two business days. He recalls that at the time the sub-committee drafted this, they had in mind the difficulties that were being deliberately caused for defendants, for example, at Christmas and Easter, by some solicitors serving at the most inconvenient times on purpose.
Whilst it would be helpful to have a case decision which confirms this interpretation, perhaps the fact that it has not been a live issue before the courts so far is because for most people the wording of CPR 6.14 is clear enough. For domestic claim forms, the key date for limitation purposes is the date of dispatch, not the date of deemed service. Therefore, the date of deemed service is only relevant for setting the future timetable. Nevertheless, given the current focus on compliance with deadlines, this is still important.
On a practical level, I think it is vital that practitioners are aware of the difference in the wording between CPR 6.14 and CPR 6.26. You can then take precautions to try to ensure that this does not become an issue, for example, by making reference in the covering correspondence to the date on which you consider the relevant document to have been deemed served. You could also invite your opponent to let you know if they disagree.