Brown and Others v InnovatorOne Plc and Others: ComC 19 Jun 2009

The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by fax.
Held: The service had not been valid. The claimant effectively argued for the right to serve by fax even where it had been told that the solicitors did not have instructions to accept service.
Andrew Smith J said: ‘there is no apparent reason [under CPR Part 6] that the fact that a defendant’s solicitor has a fax number on his writing paper should mean that the solicitor can be validly served, but it makes perfect sense for this to mean that, if the claimant has been told that the solicitor may be served, then service upon him may be by fax.’
Service without confirmation that the solicitor had instructions to accept them, and without confirmation that they would accept service by fax was ineffective.
As to the request for an order allowing service: ‘even if exceptional circumstances are not required to justify a retrospective order under CPR rule 6.15, the court should adopt a rigorous approach to an application by a claimant for indulgence. After all, the rule does stipulate that an order should be made only where it appears that there is ‘a good reason’ to do so . . ‘

Andrew Smith J
[2009] EWHC 1376 (Comm)
Civil Procedure Rules 6.4, Civil Procedure (Amendment) Rules 2008
England and Wales
CitedMolins Plc v G D Spa CA 29-Mar-2000
In a case where the national court which would deal with a matter was the court first seised of the matter, a stay could only be awarded where the proceedings until the proceedings were definitively pending in that court. Documents could be served . .
CitedElmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .
CitedMarconi Communications International Ltd v Pt Pan Indonesia Bank Ltd Tbk ComC 4-Feb-2004
Marconi claimed damages for the defendant’s alleged breach of contract in respect of the latter’s failure to honour its obligations as a confirmer of a Letter of Credit. Marconi alleged that Panin Bank wrongfully failed to accept drafts properly . .
CitedRegina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
CitedCollier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
CitedAnderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
CitedSecretary of State for Communities and Local Government v Bovale Ltd and Another CA 11-Mar-2009
The applicant had sought to quash a refusal of its plannng application. An order had been made for the service of evidence, and the judge had set down an order which was expressed to be of more general application. The Secretary of State now . .
CitedKuenyehia and others v International Hospitals Group Ltd CA 25-Jan-2006
Service of litigation documents by fax was not an acceptabe departure from the rules where the party being served had not beforehand given consent to service in this manner. The mere advertisement of a fax number did not amount to such consent. Such . .

Cited by:
See AlsoBrown and Others v InnovatorOne Plc and Others ComC 28-Jul-2010
The claimants alleged breach of trust by the defendants in their promotion of an investment scheme which went on to fail. One defendant, a Swiss bank now sought a declaration that the court had no jurisdiction over it.
Held: The defendant’s . .
See AlsoBrown and Others v InnovatorOne Plc and Others ComC 18-May-2012
The claimants had been advised to invest in a scheme promoted by the defendants with the assistance of their solicitors. On the failure of the scheme they now sought relief alleging inter alia, breach of trust.
Held: The claims failed. In . .
CitedSmart v The Forensic Science Service Ltd CA 2-Jul-2013
On a search of his house, the police found a bullet cartridge on the claimant’s property. It was sent for testing but due to a mistake it was reported as a live cartridge. The prosecution was only dropped after some months when the mistake was . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 31 October 2021; Ref: scu.347123