This judgment was handed down remotely at 2.00pm on 6 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives
(see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
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SENIOR MASTER COOK
Senior Master Cook:
- These cross applications raise an issue in relation to the service of a claim form which has been amended prior to service under CPR 17.1, in the context of PD 51O, the Electronic Working Pilot Scheme. In short, Mr Wolanski KC, on behalf of the Defendants, submits that the amended claim form requires re-sealing and filing prior to service and that the failure to do so is fatal to the prospects of this claim. Mr Hudson KC submits that the amended claim form does not require re-sealing or filing prior to service.
- The following evidence has been served;
i) First witness statement of Anthony McKeever dated 22 October 2024, on behalf of the Claimant.
ii) First witness statement of Tom Double dated 29 October 2024, on behalf of the Defendants.
iii) Second Witness statement of Tom Double dated 22 November 2024, on behalf of the Defendants.
iv) Second Witness statement of Anothony McKeever dated 4 March 2025, on behalf of the Claimant.
The parties
- The Claimant was employed by the Second Defendant in the position of Director for Legal & Affiliate Services from June 2011 until his resignation on 12 January 2023. In 2016 the Claimant was promoted to the position of Assistant General Secretary where he additionally had responsibility for politics and a number of industrial sectors. From March 2020 until September 2021 the Claimant also undertook the role of Acting Financial Director.
- The First Defendant is and was at all relevant times the General Secretary of the Second Defendant. She has occupied that position since August 2021. The Second Defendant is a British and Irish trade union. It has over 1.2 million members in construction, manufacturing, transport and other sectors.
Background to the claim
- On 13 December 2022 the Claimant issued proceedings in the Employment Tribunal for unjustified discipline against the Second Defendant, and on 3 June 2023 the Claimant issued a further claim for constructive unfair dismissal against the Second Defendant (the "ET Proceedings"). These claims arose out of the Claimant's suspension from his role on 3 August 2022.
- The ET proceedings were heard over an 11 day period in June and July 2024. By judgment given orally on 9 July 2024 the ET dismissed the Claimant's claims, and on 2 September 2024 the ET handed down its written reasons. The relevant detail is set out at paragraphs 10 to 23 of the second witness statement of Mr Double.
- One of the grounds relied on by the Claimant in his claim for unfair constructive dismissal was the alleged unlawful disclosure of information relating to the Claimant's suspension to a journalist, Mr Joe Pike. This included an allegation that Ms Gail Cartmail, the Second Defendant's Executive Head of Operations, leaked the letter that notified the Claimant of his suspension. The issue of whether the Second Defendant had leaked this information was thoroughly litigated, and explored through documents provided as part of the disclosure process.
- In its written judgment, the ET made the following findings in relation to the alleged misuse of private information:
"We find no evidence of misuse of the Claimant's private information. We do, however, find that there are substantial grounds to believe that the Respondent may have, whether inadvertently or deliberately, at whose instigation we are not in a position to say, leaked communications regarding matters pertaining to the him [sic], the police investigation and the Birmingham Project to Mr Pike and others. However, we find no evidence that that was done by, or at the instigation of, Ms Cartmail, Ms Kielim or Ms Graham, and therefore on the balance of probabilities we are not able to conclude that it was done and therefore we dismiss the contention that it constituted a breach of the implied term of trust and confidence."
- It would appear that the ET proceedings were widely reported in the press, see paragraph 22 of Mr Double's second witness statement. As a result the Defendants contend that "the fact that the Claimant was suspended by the Second Defendant" is now very much in the public domain as a result of the ET claim which the Claimant chose to bring.
The current proceedings, issue and service of the claim form
- On 17 May and 24 May 2024 the Claimant's solicitors, Havard Law ("HL"), sent Letters of Claim to the First Defendant and Second Defendant asserting claims for defamation in respect of words that were said to be spoken by the First Defendant or by parties at her behest at the Second Defendant's Executive Council meeting on 6 June 2023.
- On 5 June 2024 the Claimant filed his Claim Form in the Liverpool District Registry. It was filed using Electronic Working and a PDF of the sealed claim form bearing the Court's seal dated 5 June 2024 was sent by the Court to the Claimant's solicitor by e-mail on 6 June 2024. The claim form set out a claim for libel. In the circumstances it is agreed that the claim form was valid for a period of 4 months until 5 October 2024.
- Prior to service of the Claim Form the Claimant decided to amend his claim by replacing his claim for libel with a claim for misuse of private information. The Claimant's solicitor made manuscript alterations in red to the copy of the claim form issued by the court. The words "Amended Claim Form Under CPR 17.1 (1) Dated 21/10/24" appeared across the top of the claim form. The Claim for libel was struck through in red and a claim for damages for misuse of private information in respect of details about the Claimant's suspension from employment being disclosed to a member of the press together with a claim for an injunction was set out and underlined in red.
- It is common ground that the Claimant's solicitor sent the amended claim form together with particulars of claim and a response pack to the Defendants' solicitor by first class post on 2 October 2024. The Defendants' solicitor received them on 3 October 2024.
- On 4 October 2024 the Claimant's solicitor completed the Certificate of Service in form N215. The first box on the form N215 appears next to the words; "What documents did you serve? Please attach copies of the documents you have not already filed with the court." The box contained the following information; "1) Amended Claim Form 2) Particulars of Claim 3) N1C 4) N9 5) N9B". On the same day the N215 and pdf copies of the documents were uploaded to CE-File. At 1.06pm the same day the Claimant's solicitor received an e-mail from the Court confirming acceptance of the documents uploaded.
- On 11 October 2024 the Defendants' solicitor wrote:
"The Amended Claim Form bears a Court seal with a date of 5 June 2024. Meanwhile, our enquiries with the Court suggest that the Amended Claim Form has not been filed at all, much less within time. It seems clear from this, that what you have done is to take the Claim Form that you filed protectively with a date of issue of 5 June 2024, amend it in manuscript, and purport to serve it. That as you ought to appreciate, does not amount to good service.
Although CPR 17.1 (1) (1) provides that a party may amend their statement of case without consent or permission prior to service, an amended claim form obviously still needs to be filed at Court before service can be effected. This is made clear in the notes at 17.1.2 of the White Book (and should be filed as well as served) and is put beyond doubt by the Court of Appeal's decision In Ideal Shopping Direct Ltd & ors v Mastercard Inc & ors [2022] EWCA Civ 14"
- The letter went on to invite the Claimant to discontinue the claim or explain what steps he intended to take to remedy the procedural position.
- The Claimant's solicitor, in an effort to resolve the impasse, offered to re-serve a re-sealed amended claim form. He made several phone calls to the court to discuss obtaining a re-sealed claim form however the staff seemed unfamiliar with any such process. After these calls on 16 October 2024 he received an e-mail from the court stating:
"The amended form filed 15-october 2024 has been referred to a judge for clarification who has directed that the claimant solicitors are to file a blank (unsealed) version of the amended claim form which will then be sealed with the date upon receipt at the court and sent to the solicitors to then serve on yourselves"
- On 21 October 2024 an unsealed version of the amended claim form was filed with the court. This has not been re-sealed by the court.
- On 22 October 2024 the Claimant filed an application seeking a declaration that the claim was validly served by an alternative method under CPR 6.16, alternatively to dispense with service under CPR 6.16, alternatively to extend the time for service of the claim form pursuant to CPR 7.6.3.
- On 29 October 2024 the Defendants filed their application pursuant to CPR 11(4)(a) contesting the jurisdiction of the court.
Submissions for the Claimant, service of the amended claim form
- On behalf of the Claimant Mr Hudson KC made the following submissions relevant to service of the claim form;
i) Proceedings are started when the court issues a claim form at the request of the claimant, see CPR 7.2(1),
ii) The date of issue is the date entered on the form by the court, see CPR 7.2(2); and PD51O, para.7.1,
iii) PD51O, para.8.1, provides that "the Court will electronically return the sealed and issued claim form … to the party's Electronic Working online account and notify the party that it is ready for service."
iv) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the table in CPR 7.5(1) 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. In this case posting, leaving with, delivering to or collection by the relevant service provider prior to midnight on 25 October 2024. There is no dispute that this was done.
- Mr Hudson KC made the following submissions concerning the requirement to seal the claim form;
i) The claim form was sealed electronically on issue. A PDF of the sealed claim form was sent to the Claimant's solicitor via the Electronic Working website and as an attachment to an email from the Court. As required, the Claimant's solicitor downloaded and printed the sealed claim form,
ii) It was neither necessary nor appropriate for the claim form to be re-sealed / sealed again after it had been amended (in manuscript) by the Claimant's solicitor.
iii) There is no requirement in the CPR for a claim form (or other statement of case) to be sealed again after it has been amended (whether with or without permission) (provided that the amended claim form bears the Court seal). That is not surprising. The requirement to seal a claim form arises when it is issued. A claim form is only issued once. The purpose of sealing the claim form is to show that it has been issued by the court. It is not issued again after it has been amended. The date on the seal is to show when time starts to run for the period of validity of the Claim form. The date cannot be backdated: see Walton v. Pickerings Solicitors [2023] 1 WLR 3545. If the date on the Claim form was changed to the date after the amendment that would give the Claimant an additional 4 months in which to serve the (amended) claim form (from the date on which the Amended claim form was sealed again).
- Mr Hudson KC made the following submissions concerning the requirement to file the claim form:
i) There is no requirement in the CPR for a claimant to file a claim form (or other statement of case) which has been amended without permission (in accordance with CPR 17.1). Moreover, there is no requirement to file such an amended claim form before it is served on the other party.
ii) In any event, the Claimant did file the amended claim form (and other documents) on 4 October 2024. The Claimant filed the following documents: (1) Certificate of Service; (2) Amended Claim Form; (3) Particulars of Claim; and (4) Response Pack. Each document (in pdf) was categorised / labelled and was filed in accordance with para.5.1(d) of PD51O on Electronic Working. PD51O, para.5.2(2) expressly provides that parties can, in one filing, file up to 10 documents.
iii) Moreover, the filing of those documents was accepted by the Court Clerk on 4 October 2024 at 13:04. That is the end of the matter. The filing of those documents would not have been accepted by the Court Clerk had the Claimant not complied with the relevant rules on filing when using Electronic Working.
- Mr Hudson KC submitted that the Defendants' reliance on the decision of the Court of Appeal in Ideal Shopping Direct Ltd v Mastercard [2022] 1 WLR 1541 is misplaced. In that case the Court was concerned with service of unsealed amended claim forms. The 'claim forms' in issue in that case did not bear a court seal at all. The claimants had not amended (in manuscript) the sealed claim forms which had been issued by the Court, rather, they had prepared draft claim forms which had not been sealed by the Court, see Ideal Shopping at first instance, per Morgan J at §§[55]-[56]. As a result the 'claim forms' that were served did not bear a court seal, and so were not strictly speaking 'claim forms' at all. That is materially different from the present case in which the amended claim form that was served bore the Court's seal.
- Mr Hudson KC also referred to the observation of Morgan J at [§55], where the judge observed that: "this is not a case where a claimant has taken an original sealed claim form and made amendments to that document, possibly in manuscript, and added words to indicate that it had been amended pursuant to rule 17.1 and endorsed with a fresh statement of truth". Morgan J continued "[i]f a claimant did create such a document and serve it there might be room for argument as to whether that document was a claim form in an amended form: see Cant v. Hertz Corporation [2015] EWHC 2617 (Ch)". Morgan J stated however, that it "could be observed that that method of proceeding did not accord with the note in paragraph 17.1.2 of Civil Procedure which states that an amended claim form should be filed and served. If it were filed, it would be sealed by the court".
- Mr Hudson KC pointed out that in the Court of Appeal Sir Julian Flaux C referred, at [§33], to the observations of Morgan J but did not comment on them further. He submitted that in cases where electronic working applied one should be careful not to import outdated concepts derived from the previous paper regime.
Submissions for the Defendants, service of the amended claim form
- Mr Wolanski KC began his submissions with two questions. First, does a claim form amended without permission require to be filed at all? Second, can a Claimant serve a claim form amended without permission when it hasn't been filed at court? He suggested that if the Claimant was correct, that a claim form amended without permission did not require filing, it would mean that the amended claim form would not reflect the claim form filed at court and lead to a number of unhappy consequences;
i) An amendment to a claim form adding a new cause of action may require the payment the payment of an additional fee. If the amended claim form were not filed the fee would not be paid.
ii) It would be possible for an acknowledgement of service to be filed before the amended claim form were filed. In these circumstances any request for inspection of the court file under CPR 5.4C (3) (a) would result in the unamended claim form being returned which would be misleading and offend the principles of open justice.
iii) It would be possible for a claimant to amend a claim form by removing a valid cause of action and replacing it with incoherence, such as a nonsense poem by Edward Lear. In such circumstances the amended claim form would not match the issued copy held by the court and if the amended claim form were served it would falsely convey the authority of the court in relation to the amendment.
iv) It would be possible for a Claimant to add Defendants to a claim form who appeared to be out of the jurisdiction and where the relevant notice under CPR 6.33 had not been provided. In such circumstances the claim form should be endorsed with the words "not for service out of the jurisdiction", see paragraph 6.11 of the Kings Bench Guide. This would not be consistent with the orderly progress of the claim.
- Mr Wolanski KC accepted that CPR 17.1 does not expressly state that a claim form amended without permission prior to service must be filed before service. However, he submitted that the requirement to file and re-seal the amended claim form was clear from the authorities.
- In the case of Hills Contractors and Construction Ltd v Struth and another [2013] EWHC Ramsey J held that the combined effect of CPR r.7.2(1) was that "proceedings are started when the court issues a claim form at the request of the Claimant" and CPR r.2.6(1) that "the Court must seal the following documents on issue – the claim form…", is that for the purposes of the rules "a claim form is the document issued by the court on which the court seal is placed".
- Mr Wolanksi KC submitted this interpretation of the rules was approved by the Court of Appeal in Ideal Shopping Direct Ltd & Ors v Mastercard Inc & Ors [2022] 1 WLR 1541 at [137-138]. Sir Julian Flaux explained that this principle applies equally to service of amended claim forms:
"139. Any suggestion that it made any difference that what were to be served were amended claim forms is misconceived. There is nothing in rule 17.1 which removes the requirements in earlier rules such as Parts 6 and 7 in relation to the commencement of proceedings. I agree with Mr Hoskins that, were it otherwise, the claimant could avoid the requirement to serve a sealed claim form simply by amending an original claim form without permission under rule 17.1 and then serving the amended unsealed claim form, which, as he said, would make a nonsense of the scheme of the Rules."
- Sir Julian Flaux also made clear at [§140] that this general rule is not displaced by Practice Direction 51O, which governs the Electronic Working Pilot Scheme. In support of this conclusion Sir Julian Flaux relied, inter alia, on para. 8.1 of PD 51O: "The Court will electronically return the sealed and issued claim form, appeal notice or originating application to the party's Electronic Working online account and notify the party that it is ready for service."
- Lastly, in support of the proposition that an amended claim form is sealed when it is filed in court Mr Wolanski KC relied upon the commentary to the 2024 edition of the White Book at 17.1.2 which states an amended claim form should "be filed as well as served"
Discussion and decision
- As a preliminary observation, I think it is important to understand that this case concerns electronic working in the High Court which is currently governed by PD 51O. This is a free standing pilot scheme. Paragraph 1.2 (1) of PD 51O provides:
" Electronic Working works within and is subject to all statutory provisions and rules together with all procedural rules and practice directions applicable to the proceedings concerned, subject to any exclusion or revision within this Practice Direction."
- Electronic working commenced in the Chancery Division of the High Court on 1 October 2017 and in the Central office King's Bench Division with effect from 1 January 2019.
- I will return to the relevant provisions of the PD 51O in due course, however, it is also important to observe that many of the authorities cited to me, with the exception of Ideal Shopping, were decided against a background of the practice relating to paper claim forms and wet seals. Even in the more up to date authorities many of the decisions considered by the judges concerned the old paper world. A clear example of this was the Hills Contractors case where sending a photocopy of the wet sealed original claim form was held not to be good service. This decision would be hard to understand in current the world of electronic working.
- When I first began sitting as a Kings Bench Master, the Action Department would issue and seal a claim form with a red ink court seal bearing a date. A file copy would be kept and service copies would be sent to the Claimant's solicitor. If it was necessary to amend a claim form the amendments would be button sealed with a smaller red seal on both the court and service copies.
- In the circumstances it is important, to examine the relevant provisions of the CPR and then consider how the provisions of PD51O operate within them.
- CPR 7 .2 provides:
"(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.
- CR 2.6 provides:
"(1) The court must seal(GL) the following documents on issue –
(a) the claim form; and
(b) any other document which a rule or practice direction requires it to seal.
(2) The court may place the seal on the document by hand, by printing or electronically.
(3) A document appearing to bear the court's seal(GL) shall be admissible in evidence without further proof."
- The word "seal" is defined in the CPR glossary as "a mark which the court puts on a document to indicate that the document has been issued by the court".
- CPR 17. 1 provides:
"(1) A party may amend their statement of case, including by removing, adding or substituting a party, at any time before it has been served on any other party."
- In relation to amendments to the claim form made without permission CPR 17.2 provides:
"(1) If a party has amended their statement of case where permission of the court was not required, the court may disallow the amendment.
(2) A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on them."
- CPR 7.5 provides:
"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."
| Method of service |
Step required |
| First class post, document exchange or other service which provides for delivery on the next business day |
Posting, leaving with, delivering to or collection by the relevant service provider |
| Delivery of the document to or leaving it at the relevant place |
Delivering to or leaving the document at the relevant place |
| Personal service under rule 6.5 |
Completing the relevant step required by rule 6.5(3) |
| Electronic method |
Sending the e-mail or other electronic transmission |
- CPR 6.17 (2) provides:
"(2) Where the claimant serves the claim form, the claimant –"
(a) must file a certificate of service within 21 days of service of the particulars of claim, unless all the defendants to the proceedings have filed acknowledgments of service within that time; and
(b) may not obtain judgment in default under Part 12 unless a certificate of service has been filed.
- The certificate of service must be in form N215 which is a prescribed form approved by the Civil Procedure Rule Committee.
- PD 51O was made under CPR 5.5. CPR 5.5 provides:
"1) A practice direction may make provision for documents to be filed or sent to the court by –
(a) facsimile; or
(b) other electronic means.
(2) Any such practice direction may –
(a) provide that only particular categories of documents may be filed or sent to the court by such means;
(b) provide that particular provisions only apply in specific courts; and
(c) specify the requirements that must be fulfilled for any document filed or sent to the court by such means."
- I now set out the relevant provisions of PD 51O.
- Rule 2.2 provides:
"2.2 Electronic Working applies to and may be used to start and/or continue (subject to the provisions in paragraph 1.1(1)(c)) CPR Part 7, Part 8 and Part 20 claims, pre-action applications including applications under rule 31.16, insolvency proceedings, and arbitration claims in the Rolls Building Jurisdictions, the B&PCs District Registries, the Central Office of the King's Bench Division, QB DRs and detailed assessment proceedings and Part 8 claims in the Costs Office claims for judicial review except for urgent applications to which Practice Direction 54B applies and applications for permission to appeal and appeals in the Court of Appeal (Civil Division)."
- Rule 5.1 provides:
"Any document which is filed using Electronic Working must—"
(a) consist of one copy only unless required by a Court order, rule or practice direction;
(b) be in PDF format (or in Excel format if appropriate) unless the Court directs otherwise or unless the document is a draft order, in which case it shall be in "Word" format;
(c) not exceed 50 (fifty) megabytes or such other limit that may be specified by Her Majesty's Courts and Tribunals Service; and
(d) be categorised or labelled as to the type of document that it is (e.g. "Claim Form", "Witness Statement", "Exhibit") and numbered sequentially.
- Rule 5.2 provides:
"(1) In the event that a document exceeds the maximum limit specified in paragraph 5.1(c), the party seeking to file the document shall divide the document into parts and file each part separately.
(2) Parties can, in one filing, file up to 10 (ten) documents with each document not exceeding 50 (fifty) megabytes or such other limit specified by HMCTS."
- Rule 5.3 provides:
"(1) Submission of any document using Electronic Working will generate an automated notification acknowledging that the document has been submitted and is being reviewed by the Court prior to being accepted (the "Acceptance")."
- Rule 5.4 provides:
"(1) Where payment of a court fee is required to accompany the filing of a document, the date and time of filing on Electronic Working will be deemed to be the date and time at which payment of the Court fee is made using Electronic Working.
(2) The date and time of payment will also be the date and time of issue for all claim forms and other originating processes submitted using Electronic Working.
(3) For all other document filings, the date and time of filing will be the submission date and time for the purposes of any direction under the appropriate rules or for the purposes of complying with an order of the Court, unless expressly provided otherwise by the Court.
(4) Once a document filing is accepted, a notification will appear on the Electronic Working online account registered to the filing party to confirm that the document has been accepted and to confirm the date and time of issue or the date and time of filing in accordance with paragraphs 5.4(1) to 5.4(3).
(5) The date and time of issue or the date and time of filing of a document submitted using Electronic Working will not be delayed by Acceptance, unless the submission fails Acceptance because the filing error is more serious than an error of procedure, or the Court orders that it has failed Acceptance for some other reason.
(6) If the submission fails Acceptance, notice of the reasons for failure will be given to the party on that party's Electronic Working online account and if the submission was of a claim form, appeal notice, or other document requiring to be issued, it will be deemed not to have been issued."
- Rule 7 provides:
"Electronic sealing"
7.1 When the Court issues a claim form, appeal notice or other originating application which has been submitted using Electronic Working and accepted by the Court, the Court will electronically seal the claim form, appeal notice or originating application with the date on which the relevant Court fee was paid and this shall be the issue date, as per the provisions of paragraph 5.4.
7.2 The electronic seal may differ in appearance to the seal used on paper.
- Rule 8 provides:
"Service
8.1 The Court will electronically return the sealed and issued claim form, appeal notice or originating application to the party's Electronic Working online account and notify the party that it is ready for service.
8.2 Unless the Court orders otherwise, any document filed by any party or issued by the Court using Electronic Working in the Rolls Building Jurisdictions, B&PC District Registry, the Central Office of the King's Bench Division QB DRs, the Costs Office, or the Court of Appeal (Civil Division), which is required to be served shall be served by the parties and not the Court.
8.3 The CPR and IR 2016 as to filing evidence of service apply."
- In my judgment it is also important to have the overriding objective well in mind; the CPR are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. The CPR apply equally to all litigants whether they are represented or not and all litigants are expected to familiarise themselves with them, see Barton v Wright Hasell LLP [2018] UKSC 12. In these circumstances I would simply observe that the relevant rules for taking important steps in the litigation process should be clearly expressed and understandable to all.
- Both Mr Hudson KC and Mr Wolanski KC accepted that there is no express provision in the CPR which requires a claim form, amended without permission pursuant to CPR 17.1, to be re-sealed prior to service. In my judgment the rule is perfectly clear; the claim form may be amended "at any time" prior to service and the reference to "claim form" must clearly be to the sealed claim form which has been issued.
- Mr Wolanski KC sought to base his submissions on the analysis of Ramsey J in the Hills Construction case. The facts of that case were that on 16 January 2013 the Claimant issued a claim against the Defendant in respect of payments which it were alleged were due under a contract for construction works on the Defendant's home. On 23 January 2013 the claimant's solicitor sent a letter to the defendant's solicitor enclosing a copy of the claim form. On 8 March 2013 the defendants applied to have the claim struck out on the ground that the claimant had failed to serve particulars of claim within the relevant time limit. On 13 March 2013 Edwards-Stuart J struck out the claim. On 22 March 2013 the claimant applied, pursuant to CPR rr 3.1, 3.3, 3.9 and 23.10, to set aside the order of 13 March 2013, to reinstate its claim and for an extension of time for the service of particulars of claim to 15 May 2013. The judge, Ramsey J, not surprisingly reached the view that the photocopy of the claim form was insufficient, he said;
"38. The first question raised on the claimant's application is whether the photocopy of the sealed claim form enclosed with Prettys' letter of 23January 2013 was a "claim form" within the meaning of the CPR."
39. Under CPR r 7.2(1) "Proceedings are started when the court issues a claim form at the request of the claimant" and under CPR r 2.6(1) "the court must seal the following documents on issue "the claim form".
40. In my judgment the effect of those two rules is that, as a general rule, a claim form is the document issued by the court on which the court seal is placed. When therefore CPR r 6.3(1) states that: "A claim form may . . . be served by any of the following methods", I consider that, again as a general rule, it is the document issued and sealed by the court which is the relevant claim form.
- However, given Ramsey J was deciding the issue in 2014, there were already exceptions to what he called "the general rule", the judge identified them:
"41. There are clearly exceptions. When a claim form is served by fax or other means of electronic communication under CPR r 6.3(1)(d) in accordance with the Practice Direction supplementing CPR Pt 6A then necessarily there is not service of the original document issued and sealed by the court. In such circumstances the hard or soft copy of the fax or the soft copy or print out of the attachment to an e-mail is the document served but in each case the hard or soft copy represents a copy of the claim form issued and sealed by the court. Paragraph 4.3 of the practice direction states: "Where a document is served by electronic means, the parties serving the document need not in addition send or deliver a hard copy." In the absence of that practice direction the parties serving a claim form by fax or other electronic means would have had to serve, in addition, a hard copy of the claim form as issued and sealed by the court."
- Mr Wolansky KC placed great reliance on the Ideal Shopping case. The facts of that case were that the claimants issued proceedings against the defendants, 'Visa' and 'Mastercard', alleging breaches of competition law. It is clear from the judgment at first instance that the Claimants sent copies of the issued claim forms to the Defendants' solicitors by way of information and not by way of service. The claims were broadly similar to those in litigation concerning the lawfulness of multi-lateral interchange fees ('MIFs') which at that time were on appeal to the Supreme Court ('the Sainsbury's litigation'), so the parties agreed an extension of time for service of the claim forms to 17 July 2020, to await delivery of that judgment. CPR PD 51O provided for the Electronic Working Pilot Scheme to operate. Under paras 7a and 8 of CPR PD 51O, when a court issued a claim form which had been submitted using the electronic working system and accepted by the court, the court would electronically seal the claim form, return it to the party and notify them that it was 'ready for service'. Following delivery of the Supreme Court judgment in the Sainsbury's litigation on 17 June 2020 ([2020] 4 All ER 807), the claimants amended the original claim forms. However, they only filed the amended claim forms electronically via CE File on Friday 17 July 2020, the agreed service deadline. Having not received acceptance of the claim forms from the court by mid-afternoon, the claimants instead served the unsealed amended claim forms on the defendants that day. The defendants applied to the court for orders that the claimants had not served the amended claim forms by 17 July 2020, were then out of time to do so and accordingly the court had no jurisdiction to hear the claims. The claimants applied for declarations that they had validly effected service of the amended claim forms on 17 July 2020, alternatively for relief under CPR 3.10 , CPR 6.15 or CPR 6.16. No application was made to the court under CPR 7.6 for an extension of time for service. It is essential when considering these facts and the later judgements to set out precisely what documents were under consideration. Morgan J helpfully summarised the position in his first instance judgment:
"22. It may be helpful to refer, as examples, to the following three documents in the Ideal case. The first is the sealed original claim form, the second is the unsealed amended claim form and the third is the sealed amended claim form.
23. The sealed original claim form is a claim form in proper form and bearing claim number HC-2017-001410. It also bears the court seal with the date 15 May 2017. The unsealed amended claim form is a claim form in Form N1. It contains the text: "Amended Claim Form under CPR rule 17.1 dated 17 July 2020". It does not show the original wording struck out and as amended but sets out the details of the claim in a way which is not identical to that in the sealed original claim form. The unsealed amended claim form bears the claim number as before. It does not have any seal nor even a photocopy of the seal from the sealed original claim form. The sealed amended claim form is the same as the unsealed version of the document save that it has a court seal with the date 17 July 2020."
The emphasis is mine. It is important to bear in mind that what was served in this case was the unsealed amended claim form which did not have any seal or photocopy of the seal from the original amended claim form.
- So, as was recognised by Morgan J, Ideal Shopping was not a case where a claimant had taken an original sealed claim form and made amendments on the face of the document, possibly in manuscript, and added words to indicate that it had been amended pursuant to rule 17.1 and endorsed it with a fresh statement of truth. In his submissions to me Mr Hudson KC placed great reliance on the Judge's observation, relying on the case of Cant v Hertz Corporation EWHC 2617 (Ch), that in such a case there may be room to argue; that if such a document were served there might be room to argue that the document was a claim form in amended form. On the other hand Mr Wolanski KC placed reliance on the Judge's observation that this method of proceeding did not accord with the commentary in the White Book 2024 edition that an amended claim form should be filed and served. The Judge stated "If it were filed, it would be sealed by the court.". I do not accept that the Judge's statement is accurate in the case of electronic working. The current practice, at least in the King's Bench Division, is that the court would not seal such a claim form it would be filed on the court file as it would already bear the court seal. Only if a claim form were amended under CPR 17.1 by creating a new document which did not contain the court the seal would the court seal the claim form. The seal would bear a new date and the original date of issue of the claim form would then be recorded on the amended claim form. A sealed claim form amended without permission on the sealed copy would therefore only be filed not sealed. The result is that whether such a claim form was served before or after filing, the same document would be served and there would be nothing on the face of the claim form to indicate that it had been filed.
- It is instructive to note that the White Book commentary to CPR 17.1 has been expanded in the 2025 edition it now reads:
"A sealed claim form that is amended before service should be re-filed with the court that, depending upon the system in operation, will record or mark how the original sealed claim form had been amended. The resealed amended claim form ought to be served within the period prescribed by r.7.5. However, in Cant v Hertz Corp [2015] EWHC 2617 (Ch), the court (obiter) accepted that there seemed no express rule in the CPR that requires a claimant, who has properly amended their sealed claim form before service, to serve on the defendant the resealed version of the claim form, as opposed to the originally sealed version as has been amended. Problems will arise, however, if there are defects with the claim form as served (Cant) or delay in securing the resealed amendments such as affect service in time of the originally sealed and issued claim form; or, worse still, amending and serving a claim form that itself has yet to be originally sealed, as occurred in Ideal Shopping Direct Ltd v Mastercard Inc [2022] EWCA Civ 14 where the Court of Appeal from [129] onwards suggested various steps that could have avoided difficulties said to exist when using the electronic CE filing system to issue claims very shortly before expiration of deadlines. Significantly, in Ideal Shopping at [133], the court suggested that compliance with good service under r.7.5 could be satisfied by the "simple expedient" of serving the original sealed claim forms then serving the amended claim forms once they had been resealed."
A statement of case amended without permission must be endorsed as follows "Amended [Particulars of Claim or as may be] under CPR [17.1(1) or (2)(a)] dated …" and should be filed as well as served.
- In the case of Cant the claimant who was a professional photographer claimed that eight companies, forming part of the Hertz group of companies, had infringed his copyright in photographs he had taken. On 29 January 2015 he issued a claim form against all eight companies. The claim form was not served immediately. After some investigation the claimant decided not to pursue his claims against the seventh and eighth companies. In these circumstances particulars of claim were only drafted against the first six defendants. Prior to service the claimant mended the sealed claim form pursuant to CPR 17.1 in manuscript by deleting the claim against the seven and eighth defendants. On 28 May 2015 the amended claim form as originally issued and the particulars of claim were then served on the defendants. It would appear that the amended claim form and particulars of claim were also filed at court. On 3 June 2015 the claimant's solicitor received a telephone call from a court clerk who apparently said that there was a note on the file from an unnamed judge to the effect that the sealed amended claim form should be reserved on the second defendant, Hertz UK. HHJ Hacon observed of this development "I pause there just to say I find this a little surprising but stranger things have happened." Like judge Hacon I also find that development odd, it does not accord with established practice for the reasons I have already elaborated. In any event the solicitors received a resealed claim form and served it on the defendants on 8 June 2015. On 15 June 2015, the defendants' solicitor wrote contending that service of the amended claim form as posted on 28 May 2015 was in time but was invalid service because the amended claim form had not been resealed. It was common ground that service of the resealed claim form sent with the letter of 4 June 2015 was out of time. It was against this background that HHJ Hacon stated at paragraph 14 of his judgment that:
"I certainly accept that there appears to be no rule in the Civil Procedure Rules which requires a claimant who properly amends his claim form to serve on the defendant a resealed version of a claim form as opposed to the version that has been sealed once and has been amended afterwards. I think the difficulty though the claimant has in this case is that the claim form on which it must rely for good service was not an amended version of an earlier claim form which had been properly served. The first claim form that was ever served was the amended version and that amended version had not been sealed by the court or at least, the document actually served on the second defendant had not been resealed by the court. I think it is at least arguable that the requirement set out by Ramsey J in Hills Contractors, namely that for good service the claim form which must be served on the defendant is the sealed version in the normal course was not satisfied in the present case. "
- The difficulty I have with analysis of HHJ Hacon is with his assertion that the first claim form that was ever served was the amended version and that that document had not been resealed by the court. As I have already observed and HHJ Hacon accepted, there is no requirement in the CPR for a claimant who properly amends his claim form to serve on the defendant a resealed version of a claim form as opposed to the version which has been sealed once and amended afterwords. In any event HHJ Hacon merely thought it "at least arguable" that the requirement in the case of Hills Contractors for service of a sealed claim form was not met. As I have pointed out at paragraphs 56 and 57 above it is important to understand the context in which the case of Hills was decided and the development of circumstances where exceptions to Ransey J's general rule may have developed over time.
- In view of his uncertainty as to the position under CPR, HHJ Hacon went on to consider whether, on the assumption, the defendants' argument was right he would grant relief from sanctions. I make no comment on the appropriateness of such an approach but merely note the judge's observation as to whether there was a breach of the rules at stage two of his application of the Denton test:
"The second point for me to consider is why the default occurred. It occurred, apparently, because Mr Cant's solicitors did not believe there was any breach of the rules in serving an amended claim form which had not been resealed. As I have said, I am not convinced they are wrong but even if they were, my doubts about the matter suggest to me that the default was not one for which the claimant's solicitors could be seriously criticised. "
- Pulling the strings together I have concluded that there is no requirement in the CPR which requires a claimant using electronic working who has amended a claim form without permission under CPR 17.1 by endorsing the issued and sealed version received from the Court to serve a re-sealed version of the claim form. Nor is such a requirement imposed by any of the case law decided before or after the implementation of the Electronic Working pilot. This conclusion accords with the reality of practice in the King's Bench Division where there would be no discernible difference in a claim form amended pursuant to CPR 17.1 on the face of the issued sealed copy if it were served prior to filing or after filing.
- I have concluded that there is an obligation to file a claim form which has been amended without permission under CPR 17.1 by endorsing the issued and sealed version received from the Court with the Court. The obligation to file such a claim form can be found in the requirement of CPR 6.17 (2) to file a certificate of service in form N215 and any documents which have not already been filed with the court within 21 days of service of the amended claim form.
- In the circumstances I accept the submission of Mr Hudson KC and find that the claim form was validly served in accordance with CPR 7.5(1) within four months of the date of issue.
- Having reached these conclusions, I accept that one of the potentially unfortunate consequences, identified by Mr Wolanksi at paragraph 27 above, may arise in practice. It may well be that for a limited period of not more than 21 days the court file will not contain the claim form as amended. This seems to me to be a consequence of the application of CPR to electronic working. There may well be other circumstances where there is a delay between the filing a document and its acceptance under PD 51O r 5.4 (4).
- The other unfortunate consequences identified by Mr Wolanski are met by existing provisions in the CPR. If an impermissible amendment were made by a claimant the defendant may apply for it to be disallowed under CPR 17.2. Similarly if the amended claim form were served out of the jurisdiction under CPR 6.33 in impermissible circumstances the defendant would challenge jurisdiction under CPR 11. Lastly, if the amendment required a further fee to be paid, PD 51O para 5.4 (1) provides for payment to be made when the document is filed.
- If I were to be wrong in my conclusions above and it is a requirement of the CPR that an amended claim form amended without permission under CPR 17.1 by endorsing the issued and sealed version received from the Court form must be re-sealed or filed prior to service, I would accept the submission made by Mr Wolanski KC that the Supreme Court's decision in Barton v Wright Hassall confirms that CPR r.3.9 does not give the court power to grant relief to a claimant who has failed to comply with the rules governing service of a claim form, see Lord Sumption at §[8]:
"…there is a disciplinary factor in the decision whether to impose or relieve from sanctions for non-compliance with rules or orders of the court, which has become increasingly significant in recent years with the growing pressure of business in the court. CPR r 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 Date for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all."
- Further, it is clear from a series of cases that the provisions of CPR r.6.15(2), r.6.16, and r.7.6(3) cannot be circumvented by an application under r.3.10, see Vinos v Marks & Spencer Plc [2001] 3 All ER 784 at [20]; and Ideal Shopping (CA) at [146]; and Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) at [71-82]. In the circumstances I am of the view the Claimant can place no reliance on the approach of HHJ Hacon in the case of Cant.
- It would follow that service of the claim form would have to be set aside. However, in the circumstances of this case this would be of little consequence as a new claim form could be issued, the limitation period still being current.
- Either way, I consider that it is unfortunate the relevant provisions of the CPR are not expressed with the clarity which would have avoided this situation. As I have observed, the Rules should be clear and accessible to all who have cause to use them. I understand the Civil Procedure Rule Committee are considering re-drafting PD 51O and incorporating it into the mainstream Civil Procedure Rules, I would urge them to give this issue specific consideration.
