Does service of an unsealed claim form amount to good service

In Ideal Shopping Direct Limited & Ors v Mastercard Incorporated & Ors [2022] EWCA Civ 14 the Court of Appeal upheld a High Court judgment which held that service of an unsealed claim form does not constitute “good service”. Further, the Court of Appeal followed the judgment in Vinos v Marks & Spencer Plc [2000] EWCA Civ B526 that service of an unsealed claim form could not be remedied by CPR 3.10. The Court of Appeal considered the Rules relating to service of a claim form and the error of procedure rule under CPR 3.10, and provided helpful commentary on appropriate steps to be taken to effect service.

Background

The appellants had issued proceedings against the respondents in the High Court, alleging breaches of competition law.

CE File is the new electronic filing and case management system implemented under PD51O. PD51O provides for a pilot scheme (defined in PD51O as “Electronic Working”) to operate in (among others) the Rolls Building jurisdictions. Paragraph 2.2A of PD51O provides that Electronic Working must be used by a legally represented party in the Rolls Building jurisdictions from 1 October 2017 to start or continue claims.

Between February 2017 and January 2020, the appellants issued claims against the respondents, alleging breaches of competition law. The issues raised by the appellants were similar to those being considered at the time in Sainsbury's Supermarkets Ltd v Visa Europe Services LLC & Ors [2020] UKSC 24 and it was decided that awaiting the outcome of the Sainsbury’s litigation was in the interests of both parties. The appellants’ solicitor sent copies of the issued claim forms to the respondents’ solicitors for information (not by way of service), and the deadline for service of the claim forms was extended to 17 July 2020. The Sainsbury’s judgment was handed down on 17 June 2020 and the decision prompted the appellants to amend the original claim forms before the deadline. The appellants’ solicitors sent the amended claim forms and Particulars of Claim to the Court electronically for filing on 17 July 2020, and when the appellants’ solicitors had not received the sealed amended claim form from the Court, the unsealed amended claim forms were served on the respondents’ solicitors.

Rules

This judgment discussed the CPR in detail with the following rules of particular relevance.

CPR 2.6 provides that the Court must seal the claim form on issue. It is noteworthy that Paragraph 1.2 of PD51O provides that “Electronic Working works within and is subject to all statutory provisions and rules together will all procedural rules and practice directions applicable to the proceedings concerned…”, and Paragraph 8.1 of PD51O states that the Court will electronically return the sealed and issued claim form and it will “notify the party that it is ready for service”.

CPR 3.10 gives the Court a general power to rectify errors of procedure, providing that where there has been an error “such as a failure to comply with a rule or practice direction” the “court may make an order to remedy the error”.

Decision

The Court of Appeal dismissed the appeal.

In coming to this unanimous decision, Sir Julian Falux C considered cases that followed Vinos which held that a document in the form of a claim form is only a claim form for the purposes of the CPR if it bears an original court seal. He rejected the appellants’ argument that this was displaced by PD51O. In considering CPR 3.10, he held that there was Court of Appeal authority which held that CPR 3.10 does not have the effect the appellants argued. CPR 3.10 is a general provision which does not prevail over specific rules of service. He held that the claim forms had not been served, and that relief under CPR 3.10 was not available in principle, and that he would have declined to grant relief if it had been available.

The judge also set out steps the appellants should have taken to ensure service:

1. First, the appellants should have filed the amended claim forms earlier than the final day of service.
2. Second, if this was not possible, the appellants’ solicitors could have shown the respondents’ solicitors a good reason for further extension.
3. Third, if an extension was not forthcoming, the appellants’ solicitors could have served the original claim forms, and then served the amended claim forms when sealed.
4. Fourth, when the amended claim forms were filed, the appellants’ solicitors could have asked the Court to expedite acceptance to ensure that they were sealed by the deadline.
5. Finally, the appellants’ solicitors could have issued an application for an extension of time under CPR 7.6(2).

The judge noted that the Court would have likely granted a short extension.