Case No:   HC-2015-000987

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
7 Rolls Building
Fetter Lane
London
EC4A 1NL 

Thursday, 17 December 2015

BEFORE:

MASTER MATTHEWS

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BETWEEN:

DB UK BANK LIMITED
(t/a DB MORTGAGES)
Claimant
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SINCLAIR SOLICITORS LIMITED
Defendant 

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MR IMRAN BENSON (instructed by Rosling King LLP) appeared on behalf of the Claimant

MR PAUL MITCHELL (instructed by Hill Dickinson LLP) appeared on behalf of the Defendant

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JUDGMENT
1.	MASTER MATTHEWS:  This is an application by the defendant by notice dated 1 February 2015.  The defendant seeks a declaration that the court has no jurisdiction to hear this claim.  The application is supported by a witness statement of Katie Elizabeth Vernon, also dated 1 October 2015, which sets out the history of the events leading up to the application.  It is opposed by the witness statement of Helen Thirkettle dated 16 November 2015.  There is also before me, though I have not yet heard argument on it, an application by notice of 16 November 2015 by the claimant for relief in case the defendant's application were to be successful.  I do not need to say any more about that at this stage.
2.	The claim form in this matter was issued on 6 March 2015.  In it, the claimant, DB UK Bank Ltd trading as DB Mortgages, makes a claim against Sinclair Solicitors Limited "for damages together with interest and costs in relation to the defendant's negligence when acting on a number of residential conveyancing transactions concerning loans by the claimant secured over the properties known as…", then the details of three properties are set out.  I should say, of course, although the claim form refers to “the defendant's negligence”, that is a matter which would have to be demonstrated hereafter.  The court is in no position to know at this stage whether there is any substance in these claims.  The claim form also states the value of the claim to be just under £350,000, together with interest.  The transactions with which we are concerned took place a considerable time ago and, if the defendant's arguments about service are right, the claimant may be in some difficulty about limitation.  But I do not pause to consider that further at present. 
3.	There was also an order made in this litigation to which I should briefly refer at this stage.  That is an order made by Deputy Master Cousins on 20 June 2015, which reads as follows:
"Upon the claimant and the defendant having agreed terms under Part 7.6 of the Civil Procedure Rules and by consent, it is ordered that -
(1) The claimant be granted an extension of time for service of the claim form and Particulars of Claim of two months to 7 September 2015;
(2) Costs in the case; and
(3) This order shall be served by the claimant on the defendant's solicitors."  
4.	The evidence demonstrates, and it is agreed, that on Friday, 4 September 2015 at 16.03 hours, the Claim Form and the Particulars of Claim in this matter were sent by fax by the claimant's solicitors to the defendant's solicitors.  On the same day, Friday, 4 September 2015, copies of the Claim Form and Particulars of Claim were also left with the Document Exchange to be taken to the defendant's solicitors.  The certificate of service filed by the claimant's solicitors in this matter is dated 7 September and shows the date of service as 4 September 2015.  It says in answer to the question, "What documents did you serve?"  "The Claim Form, Particulars of Claim, response pack."  As to "On whom did you serve?" it says "Hill Dickinson, defendant's solicitors."  The address given is, I apprehend, Hill Dickinson's correct address, DX number and fax number.  In response to the question, "How did you serve the documents?" it says, "By Document Exchange and by fax machine, 1603 pm time sent where document is other than a claim form."
5.	This application for a declaration that the court has no jurisdiction depends on the defendant demonstrating that the claim form was not served within the rules, the time limit set by the rules and as extended by the agreement of the parties.  
6.	The first relevant rule is rule 6.3 which sets out the methods of service of a claim form within the jurisdiction.  I do not need to set it out.  The one thing that I notice is that it does not deal in any way with the timing of service.  It is only concerned with methods.  Timing is covered by rule 6.14.  It is, I think, the only provision in Part 6 which deals with the timing of service.  It says this:
"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)."
I simply add that, of course, this is a case of a claim form served, if at all, within the United Kingdom. It is also to be noted that the provision actually refers to completion of the relevant step under rule 7.5(1). So there is clearly a distinction being drawn between two matters: one is the date of deemed service, and the other the completion of the relevant step.
7.	The next rule that I should refer to is rule 7.5.  This is headed "Service of a claim form", and is divided into two sub-rules. The first reads:
"(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form."
Then there is a table set out.  The first column headed "Method of service" and the second "Step required".  The first entry under "Method of service” is "First class post, document exchange or other service which provides for delivery on the next business day".  Under "Step required" it states, "Posting, leaving with, delivering to or collection by the relevant service provider".  Then further down the column under "Method of service", it provides "Fax", and under the "Step required", it states, "Completing the transmission of the fax".  I do not need to read any other part of sub-rule (1).
8.	Sub-rule (2) deals with service of the claim form out of the jurisdiction.  It reads as follows: 
"(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue."  
The contrast between sub-rule (1) and sub-rule (2) is striking.  Sub-rule (1) is dealing with a claim form to be served within the jurisdiction and does not require in terms that the claimant should serve the document. Instead it requires that the claimant must complete the step required by the table.  On the other hand, sub-rule (2) dealing with claims to be served out of the jurisdiction states that plainly that the claim form must be served.
9.	It is also to be noted that this rule was recast in 2008.  It is desirable therefore to refer very briefly to the old rule 7.5.  Before 2008, this read as follows:
"Service of a claim form -
(1) After a claim form has been issued, it must be served on the defendant.
(2) The general rule is that a claim form must be served within four months after the date of issue."
That is of course the rule for service within the jurisdiction. The rule for service out of the jurisdiction was that service should take place within six months; we are not concerned with that here.  But the difference between the old form of 7.5 and the new form of 7.5, so far as concerns service within the jurisdiction, is clear.  Whereas the old rule referred to the claim form being served within a certain time, the new rule refers only to a step being taken within a certain time.
10.	It is therefore also clear to me that rule 6.14, which deals with deemed service, now performs a different function from that which it used to perform.  I was referred by Mr Mitchell, in his very comprehensive and helpful submissions, to the decision of the Court of Appeal in Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174.  In that decision, handed down by Mummery LJ, I was referred in particular to certain passages which I shall set out.
11.	First of all there is paragraph 22:
"In rejecting the submission that the deemed day of service was rebuttable by evidence of earlier actual receipt of the claim form, May LJ explained, at pp 1013-1014, para 46 [of Godwin v Swindon Borough Council [2002] 1 WLR 997] that his construction did not offend the overriding objective of the CPR:
'Granted that the purpose of service is to bring the document to the attention of the person to be served, these are all methods of service other than personal service which are not bound to put the document literally in the hands of the person to be served on any particular day. All these methods of service will not achieve this unless the person to be served is there to receive the document or takes steps to do so by, for example, going to the document exchange or checking the e-mail…Uncertainties in the postal system and considerations of this kind make it sensible that there should be a date of service which is certain and not subject to challenge on grounds of uncertain and potentially contentious fact. It seems to me that parties serving documents by these means are in a better position if the deemed date for service is certain than if it is open to challenge on factual grounds. This particularly applies to claimants wanting to serve a claim form at the very end of the period available to do so. The deemed day of service is finite and they will not be caught by a limitation defence where the last day for service is a Friday, if they post the claim form by first class post on the preceding Wednesday whenever it in fact arrives.'"
12.	 Then paragraph 28 is as follows:
"On the deeming point Mr Vineall, appearing for the claimant in Chambers’s case, made such clear and concise submissions that they were sensibly adopted without repetition or elaboration by counsel arguing against deemed service in the other three appeals. Mr Vineall accepted that, in the context of Part 6 of the CPR, certainty as to the date of service of a claim form is important, as marking both the end of a period of time and the beginning of a forward time-table. He submitted that the purpose of the deemed day of service under rule 6.7 is to protect the claimant from “attention uncertainty” by preventing the defendant from seeking to prove that the claim form has not come to his attention within the time for service, either because he has not received the claim form at all or because he has received it late.  It is, however, no part of that protective purpose to prevent the claimant from contradicting the fiction of deemed service by giving evidence to prove the fact that the claim form was actually received by, and came to the attention of, the defendant prior to the deemed day of service. The effect of the construction of rule 6.7 in Godwin [2002] 1 WLR 997 produces, he argued, an absurd and potentially unjust situation, in which a defendant has not been validly served until a day or more after the day on which he admits to having received and seen the claim form. This result cannot have been intended by the draftsmen of the CPR, which refer to a glossary of expressions used in the rules (G1.1 on p. 1905 of Vol 1 of Civil Procedure Spring 2002: see also rule 2.2(1)) including a description of “Service” as 'Steps required by rules of court to bring documents used in court proceedings to a person’s attention'."
13.	At paragraph 36 the court said this:
"Despite the eloquence of the arguments we are not persuaded that the decision of this court in Godwin is incompatible with Article 6. We are therefore bound to follow it. The aim of rule 6.7 [that is the old numbering for the rule which became 6.14 after 2008 in a slightly amended form] is to achieve procedural certainty in the interests of both the claimant and of the defendant. Certainty in the time of service of a claim form is an important requirement for the efficient performance of the case management functions of the court. It is legitimate to promote that aim by setting a deadline of 4 months from issue for the service of the claim form by one of the permitted methods and by using the legal technique of deemed service to bolster the certainty. The rules employ a carefully and clearly defined concept of the “service” of a document, which focuses on the stated consequences of the sending of the document by the claimant, rather than on evidence of the time of its actual receipt by the defendant. The objective is to minimise the unnecessary uncertainties, expense and delays in satellite litigation involving factual disputes and statutory discretions on purely procedural points. The requirement for service of the claim form within 4 months of issue, the range of permissible methods of service available at the option of the claimant and the days of service or deemed service specified for the different methods of service do not impair the very essence of the claimant’s right of access to the court to enforce his civil rights."
The passage continues, but I do not think that I need to read any more.
14.	What is important to note about this authority is that, at the time that this case was decided, the rules were different from what they are now.  It was clear that rule 6.7 had a double function.  As it stated in paragraph 28, Mr Vineall of counsel accepted that in the context of CPR Part 6, certainty as to the date of service of the claim form was important as marking both the end of a period of time and the beginning of a forward timetable.  In other words, it was concerned with saying when or what the claimant had to do and when and what the defendants then had to do and when.  Again, in paragraph 36, the Court of Appeal said the rules employed a carefully and clearly-defined concept of the service of documents, which focused on the stated consequences of the sending of the document by the claimant rather than on evidence of the time of its actual receipt by the defendant.  The importance of this is to say that, on the one hand the claimant has to do something within a certain time, and then, what happens after that is, that the defendant has to do something within a certain time.
15.	But, in my judgment, that double function of rule 6.14 was taken away in 2008 when the current form of rule 7.5, which I have already read, was introduced. The technique which had been relied on up until then was as set out in paragraph 36 of Anderton, whereby the claimant had to bear in mind the provision for deemed service in order to build an extra two days into whatever step he was proposing to take. Henceforth, the draftsman of the new rule 7.5(1) left the obligation, or cast the obligation, of the claimant simply in terms of taking a step; that step had to be taken within four months.  So there was no question of any deeming provision having effect in relation to that.  
16.	Having therefore removed one of the two functions of rule 6.14, however, the second one remains. That is to set a timetable for the future action.  In my judgment, that is now the sole or main function of that provision.  Mr Mitchell referred me to rule 7.4 of the Civil Procedure Rules which reads in part as follows:
"(1) Particulars of claim must -
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.
(2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form.
(Rule 7.5 sets out the latest time for serving a claim form)…"
17.	I do not need to read any more of the rule.  Mr Mitchell referred me to the note in paragraph 7.4.3 at the bottom of page 381 and the top of page 382 of the White Book which reads as follows:
"The calculation of the latest time for serving the claim form within rule 7.4(2) requires reference to rule 7.5, though in fact, unlike rule 7.4(2) that rule (since October 1, 2008) says nothing about ‘serving’ a claim form within a particular time but about completing a ‘step required’ by the rule within the set time.  Where service is to be effected within the jurisdiction, a claim form served in accordance with Pt 6 is deemed to be served on the second business day after 'completion of the relevant step under rule 7.5(1)' (see rule 6.14).  Presumably in such circumstances, it is intended that the 'latest time' within rule 7.4(2) for the separate service of particulars of claim is that deemed day."  
18.	I regret to say that I do not think that that last point can be right.  It seems to me that the reference in rule 7.4(2) to the latest time for serving the claim form is a reference properly to the latest time for claimant to do the step which is required under rule 7.5(1) in relation to a claim form served within the jurisdiction. I accept it may apply as stated where the claim form is to be served out of the jurisdiction under paragraph 2 of rule 7.5.  In my judgment, since the obligation of the claimant under rule 7.5(1) is only to take a certain step (whatever it is) within a four month period, the rules need to provide, as rule 6.14 does provide, for the date from which time is to run for other procedural purposes, such as to file an acknowledgement of service.  
19.	It is stated in a note in paragraph 6.14.1 at page 244 of the White Book that this arrangement marks a significant change from the effect which rule 7.5 had before October 1, 2008.  The principal objective of the change was to reduce the instances in which the deemed day of service provisions had the effect of rendering service of claim forms out of time with the result that, for the purpose of doing justice in individual cases, other provisions in the CPR that might conceivably be called in aid to rescue the claimant's claim were pressed into uses for which they were not designed. I am thinking, for example, of r 3.10, the court's power to rectify errors of procedure, and r 6.16, the power of the court to dispense with service.
20.	The position in the present case, accordingly, would have been that, since the claim form was issued on 6 March 2015, the claimant would have to take the step required under 7.5(1) by midnight on 6 July 2015.  Mr Mitchell agreed with me that the fact that the claim form would not be deemed to be served under rule 6.14 until, say, two days later, would be irrelevant in considering whether the claimant had validly effected service.  The only reason, therefore, why this application is made is because of the order that was made by Deputy Master Cousins by consent of the parties on 20 June 2015, which I have already read.  That order, as I have said, states that the parties had agreed terms under Part 7.6 of the Civil Procedure Rules.  I therefore need to look at that rule. 
21.	Rule 7.6 reads as follows:
"(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…"
I do not need to read any further in that rule.
22.	As I have said, the parties had agreed under rule 7.6 to a make an application for an order.  That application, so far as I can tell, was not made in a Form N244, an application notice, but was made simply by email which is, as it happens, a common enough phenomenon for consent orders extending time.  The parties provided both the PDF version of the signed consent order and a clean Word version which became, once approved, the order which was sealed.  So the parties themselves are doing what is stated in rule 7.6(1). They are applying for an order extending the period for compliance with rule 7.5, in other words, the period within which the claimant is to take one of the requisite steps.
23.	The operative part of the order states that the claimant be granted an extension of time for service of the Claim Form and Particulars of Claim of two months to 7 September 2015.  Mr Mitchell founds on the use of the words "service of the Claim Form".  He says it could have said, and perhaps should have said, "The time for compliance with rule 7.5", but, having used the terms which it has, this is an agreement embodied in an order of the court and that therefore it can only mean “the time for service”, and the time for service is the time for service deemed by rule 6.14.  I cannot accept this argument.  It is clear to me that what the parties were doing was applying under rule 7.6(1) for an order extending the period for compliance with rule 7.5, and they used the words in the terms of the order "an extension of time for service of the claim form" to mean exactly that.  
24.	In any event, it seems to me that, even if by these words they did not mean an application to apply for an order extending the period for compliance, but actually meant an extension of time for service, then this is also what was achieved. This is because, in my judgment, when the provisions of rule 7.5 refer to “taking a step”, that is “service” for the purposes of rule 7.5.  It will be recalled that rule 7.5 is headed, "Service of the claim form", and taking the step is what constitutes service in the case of a claim form served within the jurisdiction.  
25.	This view is supported by the statements of Flaux J in T&L Sugars Ltd v Tate & Lyle Industries Ltd [2014] EWHC 1066.  This was a case which involved a contract between the parties to serve a claim within a certain time and, during the course of his judgment, Flaux J compared the situation to that which applied to service under the CPR.  In paragraph 31, Flaux J said this:
"In my judgment these two rules, CPR 7.5 and 6.14, taken together draw a clear distinction between the date when service is actually effected, which is when the relevant step under 7.5 has been completed and the date two business days later when service is deemed to take place under CPR 6.14. If one asks oneself why that distinction is there, it is not as Mr Nicholls QC suggests because service does not actually occur until the deemed day, but because, whereas CPR 7.5 is looking at when actual service takes place, so that a claimant who takes the requisite step, depending upon which method of service he employs, can be sure that he has served within the four months of validity of the claim form (thereby avoiding, if relevant, any limitation issues), CPR 6.14 is looking at when service will be deemed to have taken place for the purpose of other steps in the proceedings thereafter, beginning with the filing of an acknowledgment of service. In my judgment, that construction of the rules is supported not only by the reasoning of Green J in the Ageas case at [63]-[80], with which on this point I entirely agree, but by the wording of the rules themselves and by the various commentaries on the CPR, not only Blackstone's Civil Practice on which Mr Mill relied, but, on a proper analysis, the notes to the White Book."
26.	 In my judgment, therefore, the order of 20 June 2015 made by Deputy Master Cousins, properly construed, simply extended time for the relevant step to be taken by the claimant by two months.  It then unfortunately wrongly stated the date wrongly as 7 September, but nothing turns on that because the relevant steps were taken by the claimant's solicitors on the preceding Friday, that is to say, 4 September.  That is within the period of four months as extended by the order of Deputy Master Cousins of 20 June.  Accordingly, it seems to me that this application must fail.  
27.	But I add this.  It is absolutely crystal clear that the defendant did have the documents in time.  The defendant did know in time exactly what they contained.  It is only the technical argument based on the effect of rule 6.14 that gives the defendant any chance to complain about what has happened in this case.  It would have had no discernible effect on the proceedings themselves had the defendant not made this argument and it would have caused the defendant no prejudice whatsoever.  Indeed, it is the defendant that has caused prejudice to these proceedings by holding them up in this and, in the case of a claim which has been brought at the end of the limitation period, that can only increase the potential problems which may arise hereafter. This is unacceptable. Accordingly, if I had decided that the defendant was right and that the claimant was prima facie out of time to serve the claim, I would have strained every purposive, constructionist sinew available to me in interpreting the rules so that this claim form was to be treated as served in time.  In the result, however, the meaning was clear, so that no purposive construction was needed. Accordingly, I dismiss the application.