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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 >> The Good Law Project, R (On the Application Of) v The Secretary of State for Health and Social Care  EWHC 1782 (TCC) (29 June 2021)
Cite as:  EWHC 1782 (TCC)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
London, EC4Y 1NL
B e f o r e :
| THE QUEEN
(on the application of THE GOOD LAW PROJECT)
- and –
|THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE
- and –
|PHARMACEUTICALS DIRECT LIMITED
Ewan West and Jonathan Lewis (instructed by Government Legal Department) for the Defendant
Louis Browne QC and Anja Lansbergen-Mills (instructed by Brabners LLP) for the Interested Party
Hearing date: 16th June 2021
Crown Copyright ©
"Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be Tuesday 29th June 2021 at 2pm"
Mrs Justice O'Farrell:
i) the Claimant's application for permission to serve an amended Statement of Facts and Grounds;
ii) the Claimant's application for an order under CPR 6.15 that would render valid any late service of its claim form; alternatively, an extension of time for such service;
iii) the Defendant's application for an order that the claim form be set aside for want of jurisdiction by reason of the late service of the claim form;
iv) the Defendant's application for the claim to be stayed until resolution of other claims in which the Claimant has challenged the award of PPE contract.
i) TheTreasurySolicitor@governmentlegal.gov.uk; and
"Pursuant to CPR r. 54.5(6), where an application for judicial review relates to a decision governed by the PCR 2015, the claim form must be filed within the time required by reg. 92(2) of those Regulations, that being within 30 days beginning with the date when the Claimant "first knew or ought to have known that grounds for starting the proceedings had arisen.". The Claimant notes, pending the Defendant's response to this letter, that this may require action by the Claimant to issue proceedings on a protective basis at short notice. The Claimant very much hopes this can be avoided by the Defendant responding to this letter in a prompt, reasonable, candid and transparent manner …"
"We refer to your letter before action, dated 8 April 2021, and confirm that we are instructed to act for the proposed Defendant in relation to this matter.
We ask that in future all correspondence in this matter is sent by email to the Government Legal Department marked for the attention of Warrick Olsen… copying the GLD individuals included in the email attaching this letter.
You have requested a response to your letter by 4pm on 15 April 2021. We do not consider the aims of the protocol will be achieved by stipulating such a restrictive deadline for the proposed Defendant to respond.
As you are aware the protocol provides that a Defendant should normally respond to a letter before action within 14 days. We anticipate that we will require 14 days to investigate the matter and provide our client's response.
We anticipate providing our client's substantive response on or before 22 April 2021 …"
"New Legal Proceedings which are required to be served upon The Treasury Solicitor can be served as follows:
By email at: firstname.lastname@example.org for all new legal proceedings issued in the UK except for new immigration proceedings.
The email addresses above are for the service of new proceedings only: any other correspondence addressed to it will be deleted unread. For all proceedings (including in the Supreme Court) once a GLD case officer has been allocated the case all subsequent service, save for formal costs claims in Immigration proceedings (see above), should be effected on their, or any nominated successor's, GLD email address)."
"We write further to your letter of 12 April 2021 indicating that you expect to be able to respond to our pre-action letter of 8 April 2021 by 22 April. This is 14 days after our letter in respect of a case that, as you are aware, has to be filed within 30 days. It is also just three working days before the court deadline.
In these circumstances, we consider that it may well be necessary for our client to file a protective claim ahead of the limitation date, along with a consent order for an immediate stay to allow us to properly consider any response and engage in further pre-action correspondence if appropriate, with a timetable for filing full grounds and evidence, and summary grounds of response, if the claim cannot be resolved through correspondence.
Please confirm that, in light of the delay to the response to the pre-action letter, your client would be willing to agree to such a consent order, in the event that our client does choose to pursue this claim following receipt of the response."
"We ask that in future all correspondence in this matter is sent by email to the Government Legal Department marked for the attention of Warrick Olsen… copying the GLD individuals included in the email attaching this letter.
New legal proceedings in England which are required to be served on the Treasury Solicitor may be served electronically via email to the following email address: email@example.com . We request that any new legal proceedings served in relation to this matter via that email address are also copied to the individuals included in the email attaching this letter…"
"For completeness, we note that you have suggested, for the first time, in your letter of 22 April, that time somehow started to run upon your receipt of a letter from this firm dated 18 March 2021 referring to "contracts awarded to PDL". This is clearly unsustainable. Our letter of 18 March 2021 dealt with "any contracts which were awarded and then subsequently cancelled, and include, but are not limited to, any contracts awarded to Pharmaceuticals Direct Limited." It is accordingly clear that we were referring to the contracts (or contract negotiations) referred to in paragraphs 17 and 18. Our client had no knowledge of the contracts subsequently awarded to PDL until the CAN of 29 March 2021. We would therefore invite you to accept that limitation expires on 27 April 2021. Even if your client maintains its position, this is a matter which can be dealt with within the litigation once issued. It does not affect the desirability of the stay referred to above"
i) breach of the duties of equal treatment and transparency contrary to the PCR 2015;
ii) breach of the common law duty to act without apparent bias.
"Please find attached, by way of service:
1. Letter for the attention of Mr Warrick Olsen, who is copied into this email, and to whom we will also send a copy of this letter directly;
2. Unsealed claim form and continuation sheet; and
3. Paginated bundle of documents.
The claim form and bundle of documents have been lodged at the court today."
"Further to earlier correspondence in this matter, and the email that has just been sent to the 'newproceedings' email address as requested, please find attached letter for your attention, as well as unsealed claim form and bundle."
"… a protective claim has been filed at Court today, 27 April 2021… A copy of the sealed claim form will be served to you electronically in due course given the Court's working arrangements …
Our understanding is that the Government Legal Department is accepting service by email, but please let us know as soon as possible if that is incorrect …"
"Paragraph 4 of our client's letter of response dated 22 April 2021 confirmed that new legal proceedings which are required to be served on the Treasury Solicitor may be served electronically via email to firstname.lastname@example.org.
Your client's claim is required to be served on the Treasury Solicitor.
We have been unable to locate any record of the sealed claim form issued in respect of this matter being sent to that email address or being served by other means.
We would be grateful if you would confirm the manner in which proper service of your client's claim form was effected."
"These proceedings were served shortly after filing by emailing them to email@example.com on 27 April 2021 at 15:54. They were sent to the personal email addresses of the solicitors handling the matter three minutes later. Mr Olsen acknowledged receipt on 16:51.
The sealed claim form was received from the Court the following day and was sent to the solicitors handling the matter for GLD at 13:44. Receipt was acknowledged by Mr Olsen at 13:47.
We therefore consider:
(i) the Defendant was validly served with the proceedings in accordance with its instructions – there is no suggestion that all future service/correspondence must be provided to the "newproceedings" address once the initial proceedings had been served at that address; and
(ii) in any event, the Defendant's solicitors received and acknowledged both the original service of the unsealed claim form and associated bundle, as well as the sealed claim form, such that there can be no question of the Defendant not being aware of the claim or of having suffered any prejudice whatsoever.
We would therefore invite you to accept that valid service has been effected. Alternatively, we attach with this letter a copy of the sealed claim form, and would invite you to accept valid service accordingly."
The Jurisdiction Applications
i) pursuant to CPR 6.15, the steps already taken by the Claimant to bring the claim form to the attention of the Defendant and Interested Party constitute good service;
ii) alternatively, an extension of time to serve the claim form to (a) 10 May 2021 for the Defendant and (b) 17 May 2021 for the Interested Party.
i) Jamie David Potter of Bindmans, dated 19 May 2021;
ii) Warrick Olsen of GLD, dated 21 May 2021;
iii) Paul Graham Lunt of Brabners LLP, dated 14 June 2021.
Position of the interested party
The material procedural rules
"(1) Proceedings are started when the court issues a claim form at the request of the claimant.
(2) A claim form is issued on the date entered on the form by the court."
"Where the application for judicial review relates to a decision governed by the Public Contracts Regulations 2015, the claim form must be filed within the time within which an economic operator would have been required by regulation 92(2) of those Regulations (and disregarding the rest of that regulation) to start any proceedings under those regulations in respect of that decision. "
"The claim form must be served on –
(a) the defendant; and
(b) unless the court otherwise directs, any person the claimant considers to be an interested party,
within 7 days after the date of issue."
"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) -
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(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
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court."
"(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 claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –
(a) within the period specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application."
"Except where these rules provide otherwise, the court may – …
(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired) …"
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error. "
Procedural irregularity or invalid service
" Since there was a clear failure by the TCC Registry to return the documents promptly it seems to me that it would not be right for the court to decline to cure the irregularity notwithstanding the fact that the problem was brought about in perhaps equal measure by the failures of [the claimant's solicitors]."
" It is clear (and accepted) that the attempted service on 14 November 2019 was not valid service in that the claim form served was unsealed and lacked a claim number. This was so notwithstanding the fact that it must have been apparent to the Guarantor's solicitors that the claim form had been issued, as was clear from the "E-filing submission confirmation" which was provided at the same time and which recorded the "filing-claim form part 7" together with payment of the appropriate court fee."
Alternative service under CPR 6.15
" The Civil Procedure Rules contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. The most significant is to be found in CPR 3.9, which confers a power to relieve a litigant from any "sanctions" imposed for failure to comply with a rule, practice direction or court order. These powers are conferred in wholly general terms, although there is a substantial body of case law on the manner in which they should be exercised … CPR rule 6.15 is rather different. It is directed specifically to the rules governing service of a claim form. They give rise to special considerations which do not necessarily apply to other formal documents or to other rules or orders of the court. The main difference is that the disciplinary factor is less important. The rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all. Although the court may dispense with service altogether or make interlocutory orders before it has happened if necessary, as a general rule service of originating process is the act by which the defendant is subjected to the court's jurisdiction.
 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…
 … In the generality of cases, the main relevant factors are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules and (ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired, and, I would add, (iii) what if any prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances.
 The first point to be made is that it cannot be enough that Mr Barton's mode of service successfully brought the claim form to the attention of Berrymans. As Lord Clarke pointed out in Abela v Baadarani, this is likely to be a necessary condition for an order under CPR rule 6.15, but it is not a sufficient one. Although the purpose of service is to bring the contents of the claim form to the attention of the defendant, the manner in which this is done is also important. Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period, as they do in this case. Time stops running for limitation purposes when the claim form is issued. The period of validity of the claim form is therefore equivalent to an extension of the limitation period before the proceedings can effectively begin. It is important that there should be a finite limit on that extension. An order under CPR rule 6.15 necessarily has the effect of further extending it. For these reasons it has never been enough that the defendant should be aware of the contents of an originating document such as a claim form. Otherwise any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving originating process.
 … I agree with the general point that it is not necessarily a condition of success in an application for retrospective validation that the claimant should have left no stone unturned. It is enough that he has taken such steps as are reasonable in the circumstances to serve the claim form within its period of validity. But in the present case there was no problem about service. The problem was that Mr Barton made no attempt to serve in accordance with the rules. All that he did was employ a mode of service which he should have appreciated was not in accordance with the rules. I note in passing that if Mr Barton had made no attempt whatever to serve the claim form, but simply allowed it to expire, an application to extend its life under CPR rule 7.6(3) would have failed because it could not have been said that he had "taken all reasonable steps to comply with rule 7.5 but has been unable to do so." It is not easy to see why the result should be any different when he made no attempt to serve it by any method permitted by the rules."
" While I would not wish in any way to depart from Lord Clarke JSC's dictum in the Abela case  1 WLR 2043 that the most important purpose of service is to ensure that the contents of the claim form (or other originating document) are brought to the attention of the person to be served, there is a second important general purpose. That is to notify the recipient that the claim has not merely been formulated but actually commenced as against the relevant defendant, and upon a particular day. In other words it is important that the communication of the contents of the document is by way of service, rather than, for example, just for information. This is because service is that which engages the court's jurisdiction over the recipient, and because important time consequences flow from the date of service, such as the stopping of the running of limitation periods and the starting of the running of time for the recipient's response, failing which the claimant may in appropriate cases obtain default judgment. "
That the presence of one or more … adverse factors may frequently outweigh the full achievement of the purposes behind the rules as to service so as to lead the court to refuse validation is necessitated by the following matters. First, compliance with the rules is now part of the Overriding Objective, although I agree with Lord Sumption that the maintenance of good discipline may be of less importance in this context than in the context of relief from sanctions. Secondly, service of a claim form (or other originating process) is an important stage in civil procedure, with potentially serious consequences, as summarised above. Thirdly, if the identification of good reason were limited to the question whether all the underlying purposes of service had been achieved, claimants could choose to ignore the rules so long as they achieved those purposes by another route of their own devising. That would be a step on the road to procedural anarchy."
i) Service of originating process can be distinguished from other procedural steps because it is the act by which the defendant is subjected to the court's jurisdiction. For that reason, a "bright line rule" is necessary to determine the exact point, from which time runs for subsequent steps in the proceedings, or to confirm the point at which time stops running for the purposes of limitation.
ii) An order under CPR 6.15, validating the non-compliant service of a claim form, may enable a claimant to escape the serious consequences that would otherwise follow, including the expiry of a material limitation period.
iii) For that reason, it is likely to be necessary, but not sufficient, for the claimant to establish that the defendant was aware of the existence and content of the claim form within the specified time for service.
iv) When considering whether to exercise the court's power under CPR 6.15, the issue is whether, on the facts of the case, there is good reason to make the order permitting alternative service; there do not need to be exceptional circumstances.
v) The main relevant factors are likely to be: (a) whether the claimant has taken reasonable steps to effect service in accordance with the rules; (b) whether the defendant or its solicitor was aware of the contents of the claim form within the prescribed time limit for service; and (c) whether the defendant would suffer prejudice by retrospective validation of a non-compliant service of the claim form.
Extension of time