The claimant issued proceedings requesting the court to return the summons to him for service. In error the court served direct. The defendant argued that the service error made the claim invalid, and in the circumstances out of time. The claimant appealed from a decision in the defendant’s favour.
Held: The appeal succeeded. ‘the principal question is whether the service of the claim form by the Court, in disregard of the Claimant’s notification that he wished to effect service himself, constituted ‘an error of procedure’ within the meaning of rule 3.10. In my view it did. ‘ However: ‘there may be cases of what might, on a literal approach, be describable as ‘errors of procedure’ but which are nevertheless of such a nature that they are evidently irremediable and cannot have been intended to fall within the scope of rule 3.10. But I see no reason why service in breach of rule 6.4 (1) should be regarded in that way – or, to put it more precisely, why it should be inferred that the rule-maker intended that rule 3.10 should be inapplicable in such a case. There is nothing in the language to compel any such conclusion: if anything, though I do not suggest that this is by itself conclusive, the use of the word ‘will’ rather than ‘shall’ or ‘must’ might be thought to point the other way. More substantially, there is nothing contrary to the fundamental scheme of the Rules, or radically unfair to the parties, in allowing such service to stand subject to any contrary order under rule 3.10 (a). There is nothing wrong in principle about service being effected by the Court: on the contrary, that is the primary route for which the Rules provide. The claim form will of course come formally to the attention of the defendant, which is the essential purpose of the rules about service. No difficulty will be created for the defendant, who will not at the time of service know that anything irregular has occurred and will simply proceed to respond in the usual way in accordance with Part 9 of the Rules. ‘
Rimer, Tomlinson, Underhill LJJ
[2014] EWCA Civ 657, [2014] WLR(D) 212, [2015] CP Rep 1, [2015] 1 All ER 131, [2015] 1 WLR 79
Bailii, WLRD
Civil Procedure Rules 6.4(1)
England and Wales
Civil Procedure Rules
Updated: 03 December 2021; Ref: scu.525645