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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> LSREF 3 Tiger Falkirk Ltd I S.a.r.l & Anor v Paragon Building Consultancy Ltd  EWHC 2063 (TCC) (22 July 2021)
Cite as: 197 Con LR 201,  BLR 612,  EWHC 2063 (TCC)
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BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT (QB)
London, EC4A 1NL
B e f o r e :
| (1) LSREF 3 Tiger Falkirk Limited I S.a.r.l.
(2) LSREF 3 Tiger Falkirk Limited II S.a.r.l.
- and –
Simon Hale (instructed by Clyde & Co LLP) for the Defendant
Hearing date: 8 July 2021
Crown Copyright ©
Mr Justice Fraser:
"We are instructed to act on behalf of Paragon Building Consultancy Limited in relation to the matters set out in your letter dated 20 December 2016."
"1. Clyde & Co requested from S+W copies of the Claim Form and Particulars of Claim on 7 October 2020. A sealed copy of the Claim form was provided to Clyde & Co on 13 October 2020. The Particulars of Claim were not provided as it was not yet finalised at this point.
2. The parties' appointed solicitors, Clyde & Co and S+W, conducted all pre-action correspondence on their client's behalves. The solicitors also conducted the negotiations over the terms of Extension Agreement (and its variations) on behalf of the parties.
3. Clyde & Co and S+W agreed that an agreement would be drafted and agreed for the extension to the date by which the Claimant must serve its Claim Form and Particulars of Claim.
4. S+W provided a draft of the Extension Agreement on 8 December 2020. Ms. Gregory of Clyde & Co. proposed amendments to the Extension Agreement in a telephone call with Mr. Reynolds on 9 December 2020. All of the proposed amendments were accepted and the draft was executed on 9 December 2020 by Clyde & Co and S+W.
5. This agreement was the subsequently varied twice - both variations were negotiated and agreed in discussions between Clyde & Co and S+W and then formalised in writing and again signed by Clyde & Co and S+W.
6. On 18 February 2021 the Claimants suggested a further extension to the Extension Agreement to 14 May 2021. The Defendants declined to agree such an extension at that stage. On 24 March 2021 the Claimants again suggested an extension to the Extension Agreement on 24 May 2021. On 1 April the Defendant indicated that a further extension would be considered. On 7 April a further extension from 16 April to 23 April was agreed and executed by Clyde & Co and S+W.
7. Ms. Gregory of Clyde & Co and Mr. Reynolds of S+W spoke on Friday 23 April 2021 at 14.40. Part of that discussion concerned a privileged communication.
8. Mr. Reynolds of S+W made two further calls to Ms. Gregory on Friday 23 April at approximately 17:39 and 18:38 which were not answered or returned by Ms. Gregory. Mr Reynolds did not leave any voice message for Ms. Gregory."
"Covid-19 outbreak: During the ongoing disruption to working arrangements and until further notice, service of claim forms, application notices and all other court documents and contractual notices should be made only by email: all other correspondence should likewise be sent via email (using the email address of the above sender). Should service of documents or contractual notices be attempted by post, courier, DX, or fax, we cannot, in the current circumstances, give any assurance that they will be received or dealt with. Many thanks for your co-operation and understanding."
"Subject to CPR 6.5(1)………., the claim form must be served at the business address of a solicitor where:
(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form, or
(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction."
"4.1 Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means—
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving—
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1)—
4.1(1)(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
4.2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received)."
" In addition, Cs had not asked any of the defendants or their respective solicitors either in the pre-action protocol letters or by any subsequent communication down to 20 July whether they were able to serve proceedings on the defendants' solicitors. That only came much later in the following year. CPR r.6.7 is entirely clear as to what is required if service is to be effected on a solicitor. A solicitor does not generally have implied authority to accept service and if a solicitor accepts service without express authority he or she is in breach of his professional duty to his client – see Personal Management Solutions Limited v. Gee 7 Group Limited  EWHC 891 (Ch) per Arnold J at . As Arnold J pointed out, this is not a technical point. It is an important matter as between clients and solicitors since holding a solicitor to have accepted service on behalf of a client notwithstanding that the solicitor had not said he was authorised to accept service or even been asked whether he was authorised to accept service could expose a solicitor without actual authority to accept service to regulatory action or a claim."
" …..As I said at the outset of this judgment, there is no dispute that at that point in time there had been no explicit statement by RPC that they were authorised to accept service. For the reasons that I have given, in my judgment no such statement was implicitly made on the true construction of any of the correspondence upon which PG relies.
 In his judgment the Deputy Master reached the opposite conclusion. In doing so, he seems to have been influenced by the fact that, as he stated no less than three times in his judgment, he considered that the point being taken by G7 was "a highly technical point". It may be that it is a technical point, but it is not simply a technical point, as counsel for G7 rightly submitted. The question of whether an originating process has been properly served is not simply a technical question; it goes to the root of the court's jurisdiction. Moreover, it is also an important matter as between clients and solicitors because it is well established that, even a solicitor is acting for his client in all respects relating to intended claim, he does not have implied authority to accept service of originating process."
"A. [The Claimants] issued proceedings in the High Court against Paragon on 14 August 2020 Claim Number HT-2020-000300.
B. The Parties enter into this agreement ("Agreement") to extend the time for service of the claim form and the particulars of claim by [the Claimants] on Paragon according to the terms of this Agreement."
"2.1 The parties hereby agree to extend the deadline for service of the claim form and the particulars of claim in the proceedings with Claim Number HT-2020-000300 from 12.00 midnight on 14 December 2020 to 12.00 midnight on 29 January 2021 ("the Agreed Date").
2.2 Pursuant to CPR 2.11, the parties acknowledge and affirm that this Agreement varies the deadline for the service of a claim form which is contained at CPR 7.5.
2.3 In consequence of this agreement the parties acknowledge and affirm that the particulars of claim must:
(a) be contained in or served with the claim form; or
(b) be served on Paragon within 14 days after the service of the claim form save that the particulars of claim must be served no later than the Agreed Date".
"3.2 The signatories to this Agreement are duly authorised by the respective party on whose behalf they sign to sign this Agreement and bind the respective party to the terms of it."
The document was signed by each firm of solicitors on behalf of their clients, with the phrase "signed for and on behalf of" followed by the party's name, and then the respective solicitor's name and signature.
"Moreover, it is also an important matter as between clients and solicitors because it is well established that, even a solicitor is acting for his client in all respects relating to an intended claim, he does not have implied authority to accept service of originating process."
1. Was Clydes prepared to accept service by email generally as a result of its communications on this specific subject? The answer to this is yes, as shown by the email footer on all the Clydes' emails.
2. Was Clydes instructed or authorised to accept service of this Claim Form in these proceedings on behalf of the Defendant, Paragon? The answer to this is no.
3. Were the requirements of CPR Part 6.7 and Practice Direction 6A paragraph 4.1 and 4.2 complied with by the Claimants' solicitors? The answer to this is, with the exception of paragraph 4.1 of PD6A, no.
"(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service…"
"(1) The court may dispense with service of a claim form in exceptional circumstances.
(2) An application for an order to dispense with service may be made at any time and –
(a) must be supported by evidence; and
(b) may be made without notice."
"What constitutes "good reason" for validating the non-compliant service of a claim form is essentially a matter of factual evaluation, which does not lend itself to over-analysis or copious citation of authority."
1. The test is whether, "in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service".
2. Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is therefore a "critical factor". However, "the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2)".
3. The question is whether there is good reason for the Court to validate the mode of service used, not whether the claimant had good reason to choose that mode.
4. The object (of the introduction of a power retrospectively to validate non-compliant service of a claim form) was to open up the possibility that in appropriate cases a claimant may be enabled to escape the consequences of limitation when a claim form expired without having been validly served.
" But having issued the claim form at the very end of the limitation period and opted not to have it served by the Court, he then made no attempt to serve it himself until the very end of its period of validity. A person who courts disaster in this way can have only a very limited claim on the court's indulgence in an application under CPR rule 6.15(2). By comparison, the prejudice to Wright Hassall is palpable. They will retrospectively be deprived of an accrued limitation defence if service is validated."
"(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction."
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders."
". In light of my conclusions above, having refused the applications made under CPR 7.6, 6.15 and 6.16, there is not a residual self-standing power available under CPR 3.9 to relieve the Claimant of the "sanction" that, as a result of his failure to validly to serve the Claim Form during its period of validity, it has now lapsed. The term "sanction" is inapt because it would, in theory, be possible for the Claimant to issue and validly serve a fresh Claim Form. The obstacle standing in the way of a claim is not any sanction imposed by the Court but the fact that the limitation period for defamation and malicious falsehood has expired."