The underlying facts of this case (alleged negligence by the defendant in conducting due diligence of a transaction code-named “Project Pigeon”) are less significant than the potentially wide-ranging consequences of the decision for the time within which documents must be served in order to comply with the Civil Procedure Rules (CPR).
Four month warning
It is well known that, generally speaking, a claim form for service within the jurisdiction is only valid for four months from the date of issue. Specifically, the claimant must complete the relevant step outlined in CPR 7.5 before midnight on the calendar day four months after the date of issue of the claim form.
What is perhaps less well known is the under-used rule in CPR 7.7, which provides that:
“(1) Where a claim form has been issued against a defendant, but has not yet been served on him, the defendant may serve a notice on the claimant requiring him to serve the claim form or discontinue the claim within a period specified in the notice.”
The decision in Brightside
In Brightside Group Ltd and others v RSM UK Audit LLP and another, the claim form was issued on 26 April 2016. On 27 May 2016, the defendants’ solicitors gave notice under CPR 7.7, requiring the claimants to serve or discontinue by 10 June 2016.
On the afternoon of Friday 10 June 2016, the claimant’s solicitors took the relevant step for service under CPR 7.5 (Delivering to or leaving the document at the relevant place). Pursuant to CPR 6.14, service was deemed to have been served on the second business day thereafter, that is, on Tuesday 14 June 2016.
The question was whether the claimant had complied with the requirement to “serve the claim form or discontinue” by 10 June 2016. Baker J held that there were two distinct questions:
- What must the claimant do to effect service (and when must that be done)?
- When do the CPR say that service, in consequence, take place?
Here, it was held that the question to be answered was the latter one: “when did service take place?” This was answered squarely and specifically by CPR 6.14. What one looks to when considering whether the deadline has been met is the date when service was deemed to have taken place, not the date when the requisite step was taken under CPR 7.5.
In the course of his judgment, Baker J cast considerable doubt on the decisions in Ageas (UK) Ltd v Kwik-Fit and T&L Sugars Ltd v Tate & Lyle Industries. In these cases, it was held that compliance with a contractual provision for service by a particular date was satisfied by taking the relevant step under CPR 7.5 by that date, without regard to the deemed service provisions under CPR 6.14.
Overall, the decision in Brightside appears to be in line with the intentions of the CPR: as was noted in the case, CPR 7.5 had previously required the claim form to be “served” within four months of issuing the claim form, but was specifically amended in 2008 to its present form. The decisions in Ageas and T&L Sugars appeared to overlook this feature of CPR 7.5 and had the potential to lead to all manner of confusion by providing different dates of “service”, which depended upon what the parties were trying to do: one date for the purposes of any contractual requirement to serve within a particular period, and one date for the purposes of considering consequent steps in the litigation.
It is now clear that taking the requisite step under CPR 7.5 is separate and distinct from “service” as used elsewhere in the CPR.
There are some important practical consequences to bear in mind.
First, claim forms which are issued for service outside the jurisdiction must still be “served” within six months under CPR 7.5(2). So, for example, where permission is granted for alternative service under CPR 6.15 (which has now been confirmed as applicable to service outside the jurisdiction, following Abela v Baadarani), and a date for deemed service is provided, care will need to be taken to ensure that the deemed date for service falls within six months of issuing the claim form.
Second, where a party is required to serve documents other than the claim from by a particular date, they must be careful to take into account the deeming provisions of CPR 6.26 (although, as a matter of practice, it will rarely present difficulties given that most documents are now served by email, which under CPR 6.26 is deemed served on the same day if sent before 4.30 pm). So, in Joyce v West Bus Coach Services Limited, a party was held to have failed to comply with an unless order, even though they had sent a disclosure list to their opponents on the penultimate day for compliance, and even though their opponents had in fact received the disclosure list that day.
Third, if the Brightside decision is correct, the CPR still has some catching up to do: for example, CPR 7.4(2) states that “Rule 7.5 sets out the latest time for serving a claim form.” That is not an accurate statement in light of the decision in Brightside, because CPR 7.5 actually sets out the latest time for taking the step required for service.