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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Brightside Group Ltd & Ors v RSM UK Audit LLP & Anor  EWHC 6 (Comm) (09 January 2017)
Cite as:  1 WLR 1943,  EWHC 6 (Comm),  WLR(D) 67
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BRIGHTSIDE GROUP LIMITED
(formerly Brightside Group plc)
BRIGHTSIDE INSURANCE SERVICES LIMITED
(formerly Commercial Vehicle Direct Insurance Services Limited)
PANACEA FINANCE LIMITED
|- and -
|RSM UK AUDIT LLP
(formerly Baker Tilly UK Audit LLP)
RSM CORPORATE FINANCE LLP
(formerly Baker Tilly Corporate Finance LLP)
Christopher Butcher QC and Josephine Higgs (instructed by Clyde & Co LLP)
for the Defendants
Hearing date: 25 November 2016
Crown Copyright ©
Mr Justice Andrew Baker :
(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.
(2) The period specified in a notice served under paragraph (1) must be at least 14 days after service of the notice.
(3) If the claimant fails to comply with the notice, the court may, on the application of the defendant–
a. dismiss the claim; or
b. make any other order it thinks just.
Application & Decision
The Arguments in Summary
i) The Claim Form was not served on or before 10 June 2016, because (a) if what Miss Evans did on that day amounted to delivering the Claim Form to or leaving it at the relevant place for the purpose of effecting service, the Claim Form was thereby served on 14 June 2016 (see CPR 6.14), alternatively (b) what Miss Evans did on 10 June 2016 did not amount to delivering the Claim Form to or leaving it at the relevant place in any event. CPR 6.14 provides that:A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).
ii) The purpose of CPR 7.7 was to entitle a defendant, by notice, to shorten the validity of a claim form; in effect, to replace the obligation to satisfy CPR 7.5 with an obligation to comply with the notice. The court's approach to a failure to serve within the time limit set by a valid CPR 7.7 notice should therefore be materially the same as its approach to a failure to comply with CPR 7.5.
iii) If that be the approach, this was a classic case for dismissal of the claim: for no reason, let alone any good reason, the claimants left it until the last minute; as a result, they served 'out of time', and after properly arguable limitation defences had accrued. The court should therefore dismiss the claim, leaving the claimants to start again and take their chances on the limitation defences.
i) What Miss Evans did on 10 June 2016 amounted to leaving the Claim Form at the relevant place on that date and that was sufficient to comply with the requirement of the CPR 7.7 notice that the Claim Form be served by 10 June 2016, notwithstanding CPR 6.14.
ii) A CPR 7.7 notice does not supplant CPR 7.5. The purpose of CPR 7.7 is to enable a defendant to get valid proceedings moving more quickly than would be the case if the claimant served only late in the period of validity of the claim form, or (as the case may be) to get rid of proceedings the claimant does not intend to pursue through early discontinuance rather than only through an ultimate failure to comply with CPR 7.5.
iii) In its discretion, the court should not dismiss the claim.
i) I do not agree that CPR 7.5(1) "creates a different regime [to that of CPR 6.14] and treats service as having occurred upon the happening of a "step required"" (per Green J. at ); or that (at ) there are under the CPR "two forms of "service" [that] serve different purposes"; or that (at ) there are "two concepts of service" within the CPR.
ii) CPR 7.5(1) now defines the temporal validity of a claim form, for service within the jurisdiction, by the obligation imposed on the claimant to complete the 'step required' within four months from issue. It therefore defines what must be done within four months by a claimant who serves within the jurisdiction for the resulting service of his claim form to be valid. It does not provide or imply that service of a claim form served within the jurisdiction occurs upon completion of that step. CPR 6.14 still fixes when, for the purpose of the CPR, service occurs for a claim form served within the jurisdiction, as it does for a claim form served out of the jurisdiction but within the United Kingdom.
iii) Green J. (at ) seems possibly to have misunderstood that the new CPR 7.5(1) reverses the ultimate result in Godwin and Anderton in all cases, not only in cases where the claim form is served within the jurisdiction.
iv) CPR 7.4 and the reference to 'service' in the CPR Glossary, referred to at -, could support, it seems to me, the explanation I have suggested for Green J.'s obiter conclusion. But they do not affect the meaning or effect of a CPR deemed date of service (they were present, in identical terms, before the 2008 amendment to CPR 7.5, and indeed the glossary was relied on as part of the losing argument in Godwin).
v) I disagree with the view (at -) that "the purpose" (if Green J. meant by that the sole purpose) of CPR 6.14 is to set a date from which to identify consequent steps in the litigation. CPR 6.14 continues to fix the date of service of the claim form, if served within the United Kingdom, for (all) the purposes of the CPR. If any other provision of the CPR operates by reference to the date of service, or requires the question to be asked when service occurred, and the claim form was served within the United Kingdom, CPR 6.14 applies. The new CPR 7.5(1) means, but means only, that that question no longer determines the validity of service of a claim form served within the jurisdiction, since that is instead now determined by when the 'step required' was completed (as a result of which, from the point of view of the CPR, service will have been effected two business days later, but that is not relevant to compliance with CPR 7.5(1)).