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 service could not be characterised as no more than a minor departure from the rules.
Neuberger LJ said: ‘we do not consider that the claimants can rely on the absence of prejudice to the defendant as a reason for letting the Judge’s decision to stand. In our view . . the time limits in the CPR, especially with regard to service of the claim form where the limitation period may have expired, are to be strictly observed, and extensions and other dispensations are to be sparingly accorded, especially when applied for after time has expired. While there may be exceptional cases, we consider that prejudice is only relevant in this sort of case to assist a defendant, where the court would otherwise think it right to dispense with service. In other words, prejudice to the defendant is a reason for not dispensing with service, but the absence of prejudice cannot usually, if ever, be a reason for dispensing with service’ and ‘Service on the defendant’s solicitors was ineffective under the CPR, and it cannot be said to have been a ‘minor departure’ from the permitted methods of service to serve on solicitors who had not been nominated by the defendant. In any event, for the reasons already given, this would not have been an exceptional case. Quite apart from any other point, it can fairly be said that it would have been only too easy for the claimants’ solicitors to ask the defendant, with whom they had been in fairly close contact, to nominate its solicitors’ address as its address for service in accordance with r.6.5(2), but they never did so.’
Judges:
Lord Justice Waller Lord Justice Dyson Lord Justice Neuberger
Citations:
[2006] EWCA Civ 21, Times 17-Feb-2006
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Contract, Limitation, Litigation Practice
Updated: 04 July 2022; Ref: scu.238134