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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Hills Contractors & Construction Ltd v Struth & Anor [2013] EWHC 1693 (TCC) (17 June 2013) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2013/1693.html Cite as: [2013] EWHC 1693 (TCC), [2014] WLR 1, [2014] 1 WLR 1 |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Hills Contractors and Construction Limited |
Claimant |
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- and - |
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Malcolm Struth Justine Struth |
Defendants |
____________________
Jonathan Selby (instructed by Birketts LLP) for the Defendants
Hearing date: 26 April 2013
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Crown Copyright ©
Mr Justice Ramsey :
Introduction
Background
"We write further to our telephone conversation on Friday 18 January 2013.
Please find enclosed a copy of the issued Claim Form.
We look forward to hearing from you with regard to the proposal to stay proceedings to allow observance of the Pre-Action Protocol."
"We refer to your letter of 23 January 2013, enclosing a Claim Form (issued on 16 January 2013) and confirm we accept this as service of the said Claim Form.
As you will be aware your client is required to serve any Particulars of Claim within 14 days of service. However, 28 days has elapsed since service of the Claim Form. Not only has your client failed to serve its Particular of Claim it has failed, to the extent it was your client's intention to formerly [sic] follow the Protocol, to take any steps towards compliance.
As regards the principle of a stay for the Pre-Action Protocol, it is fair to say both parties know the position adopted by the other, as your client's position was made clear in its final account and our client's position was made clear in the Final Certificate and Certificate of Making Good Defects Certificate. We therefore see no benefit in slavishly complying with the Protocol in circumstances where the parties are fully aware of the other party's respective position. That said, the requirement/suggestion in the Protocol for the parties to attend a meeting has not yet been explored.
As such we are instructed that our client requires either service of your Particulars of Claim within 14 days (6 March 2013) or for your client to put forward proposals acceptable to our client in relation to a Protocol meeting. If we receive acceptable proposals in relation to a Protocol meeting within the next 7 days, our client is content to waive its requirement in relation to service of the Particulars of Claim and agree a suitable extension to any such service. However, in the absence of any such proposals acceptable to our client we are instructed to apply for your client's claim to be struck out if the Particulars are not served within the date specified above."
"Thank you for your faxed letter dated 20 February 2013.
The claim form has not been served yet. We sent you a photocopy.
Your comments with regard to protocol observance are noted. Our client is willing to meet as suggested. We will come back to you with some suggested dates during the course of this week."
"We will be contacting you during the course of the week with regards to the proposed meeting. The delay has been caused by illness of our client's quantity surveyor, Mr Witting.
We also enclose a copy of our letter to the court. We note that you have not exhibited our letter dated 25 February 2013, a copy of which is enclosed."
"We request that the application be dealt with at a hearing.
The application is misconceived in that the claim form has not, as yet, been served.
The claim form enclosed with our letter dated 23 January 2013 addressed to Birketts exhibited as AGR1 was a photocopy. The sealed copy for service remains on our file. The time for service of the particulars of claim has therefore not begun to run.
This was confirmed in our letter to Birketts dated 25 February 2013, a copy of which is enclosed as it was not exhibited to Mr Rush's statement.
In the event that the application is not withdrawn we will prepare witness evidence but have refrained from doing so to date in order to save costs."
The Application
"Circumstances may arise where it is practical and convenient for both claimant and defendant for the claimant, having issued a claim form, to send to the defendant a copy of it, not "by way of service", but 'for information only". Generally as it is a copy of the claim form that is sent to the defendant, and not the issued form that may in due course be served on the defendant by way of one of the methods of service permitted (other than by an electronic method), no question arises of such service being valid service, whatever the intention of the parties. In Asia Pacific (HK) Ltd v Hanjin Shipping Co Ltd [2005] EWHC 2443 (Comm) November 7, 2008, unrep. (Christopher Clarke J) the question which arose was whether service "by way of service" could be implied in circumstances where it was arguable that it was 'for information only'. The intriguing feature of this case was that the method of service adopted by the claimants had been service by fax, so the fact that the claim form received by the defendants was not a form issued by the court, but a copy of it, would not in itself affect the validity of service."
"It is clear that a copy of the claim form as issued was sent to Branton on 15 March 2002. In other words, a copy of the right document was sent to the right person at the right address and, if CPR 6.7 applied, it was deemed to have been served before the expiry of the 4 month period. Moreover, Branton were informed by Horwich that the original documents had been served on the defendant's registered office that same day. The only flaw in the process was that Horwich sent a copy of the issued claim form, rather than the original document itself. In this regard, it is to be noted that, if Horwich had sent the issued claim form to Branton by fax that would have been good service. A document received by fax is a copy document. The circumstances revealed by this case do not precisely satisfy the Anderton criteria: Branton received a document served by one of the permitted methods of service (ie by first class post on the right person at the right address), but it was a copy of the document that should have been served."
"That question must - as is common ground - be judged objectively, that is to say by looking at what was done and said by and as between the parties in order to determine whether it amounts to service. If it does so, an unexpressed intention that it should not do so cannot alter the position. If it does not do so, the fact that the person who did the acts in question intended or thought that what he did constituted service does not make it so. Whether service has been effected cannot depend upon the views, possibly idiosyncratic or even bizarre, of individual litigants or their advisors."
"When a claim form is delivered to the recipient in a manner provided for by the rules it is, in my view, served unless it is made clear by the person who delivers it that, whilst he is delivering the form by such a method he is not in fact serving it."
"36. The facts (i) that no response pack was served, (ii) that the claim form was marked "Claimant's Copy" and (iii) that the fax did not state that the claim form was faxed "by way of service" do not in my judgment demonstrate that no service was intended at all.
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37. I am conscious that it is necessary to look at the cumulative effect of the matters upon which Mr Berry relies but even when I do so I am not persuaded that they demonstrate that the claim form was not provided by way of service."
Service of the claim form
Extension of time for service of the Particulars of Claim
"If by reason of complying with any part of this protocol a claimant's claim may be time-barred under any provision of the Limitation Act 1980, or any other legislation which imposes a time limit for bringing an action, the claimant may commence proceedings without complying with this Protocol. In such circumstances, a claimant who commences proceedings without complying with all, or any part, of this Protocol must apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings. The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this Protocol."
"It is clear that Brooke LJ treated Sayers's case as a relief from sanctions case, or at least closely analogous to such a case. That is because the time for appealing had already expired when the application for an extension of time was made. I see no reason to import the rule 3.9(1) checklists by implication into rule 3.1(2)(a) where an application for an extension of time is made before the expiry of the relevant time limit. There is a difference in principle between on the one hand seeking relief from a sanction imposed for failure to comply with a rule, practice direction or court order, where such failure has already occurred, and on the other hand seeking an extension of time for doing something required by a rule, practice direction or court order before the time for doing it has arrived. The latter cannot sensibly be regarded as, or even closely analogous to, a relief from sanctions case. If the draftsman of the rule had intended that the checklist set out in rule 3.9(1) should be applied when the court is exercising its discretion under CPR 3.1(2)(a) in such a case, then he could and, in my judgment, would have said so. By not spelling out a checklist in rule 3.1(2)(a), it seems to me that the draftsman was intending that the discretion should be exercised by simply having regard to the overriding objective of enabling the court to deal with cases justly including, so far as practicable, the matters set out in rule 1.1(2) ."
Conclusion