Neutral Citation Number: [2009] EWHC 100 (QB)
Case No: QB/2008/APP/0597
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/01/2009 

Before :

THE HONOURABLE MR JUSTICE WYN WILLIAMS
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Between :

	MICHAEL REBBEL THORNE	Appellant/ Claimant 	
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LASS SALT GARVIN (a firm)	
Respondent/ Defendant	

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Mr Nigel Burroughs (instructed by Messrs Hodge Jones Allen Solicitors) for the Appellant
Mr Peter Kirby (instructed by Lass Salt Garvin) for the Respondent

Hearing dates: 20 January 2009
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Judgment
Mr Justice Wyn Williams : 
1.	This is an appeal brought by the Claimant against the order of Master Rose dated 12 August 2008 in which he declared that the purported service of the Claim Form by fax on 6 June 2008 was invalid and ineffective and in which he refused to make an order dispensing with service. I also have before me an application to amend the Notice of Appeal. The proposed amendment, if permitted, would require this Court to decide a point not argued before the Master.
Background Facts
2.	In late 2000 the Appellant instructed the Respondent to represent him in a dispute with his sister concerning the interpretation of their mother’s will. Litigation ensued which was concluded in early 2002. The Appellant alleges that the Respondent was negligent in its conduct of that litigation. I know nothing about the merits of that allegation save that it is denied.
3.	It is common ground that the Respondent acted for the Appellant in the litigation until about the beginning of 2002. Following the conclusion of the litigation there was no intimation of a claim by or on behalf of the Appellant against the Respondent. The first that the Respondent knew of a claim was when it received the Claim Form by fax on 6 June 2008.
4.	The Claim Form was issued on 31 January 2008. By virtue of CPR 7.5 the final date for service of the Claim Form was 13 May 2008. On 29 May 2008 the Claimant sought an order extending time for the service of the Claim Form. Master Eyre granted an extension to 6 June 2008. In the same order he specified that the time for service of the Particulars of Claim should be extended to 4 July 2008.
5.	On 30 May 2008 the Appellant contacted Miss Rachael Brown, a solicitor employed by Messrs Hodge Jones and Allen. A discussion on the telephone took place in which the Appellant informed Miss Brown that he had issued a claim against the Respondent on 31 January 2008 and that time for serving the Claim Form had been extended to 6 June 2008. Miss Brown told the Appellant that he should serve the Claim Form “now” and that he should then go to see her with as many papers as possible about his case. Other details of the conversation between Miss Brown and Appellant are contained in paragraphs 3 to 5 of Miss Brown’s Witness Statement.
6.	On 5 June 2008 the Claimant tried to speak to Miss Brown but she was away from the office on leave. She returned to work on 6 June 2008. On that day she telephoned the Claimant who informed her that he had not obtained any further time for serving the Claim Form and, in consequence, that it needed to be served that day. Miss Brown told the Appellant to serve the Claim Form and then come to her office.
7.	At approximately 3.00pm on the afternoon of 6 June 2008 the Appellant arrived at the offices of Messrs Hodge Jones and Allen. In summary what then happened is that Miss Brown drafted a letter to the Respondent and faxed it to them at 3.15pm together with the Claim Form and the order made by Master Eyre. Prior to the fax there was no communication of any kind between Miss Brown for the Appellant on the one hand and the Respondent on the other.
8.	On or about 13 June 2008 a partner in the Respondent firm signed a document entitled Acknowledgement of Service. There is a box on the form in which a Defendant is asked to state his full name if it is different from the name given on the Claim Form. The partner wrote:- 
“We decline to acknowledge purported service by fax as it did not comply with the requirement of CPR 6.2 and Practice Direction 6 and the subsequent purported postal service was out of time”
An Acknowledgement of Service contains a number of tick boxes which need to be completed appropriately. They are:- 
“1. I intend to defend all of this Claim 
2. I intend to defend part of this Claim
3. I intend to contest jurisdiction”  
Opposite each of those statements a box appears for the person completing the form to tick appropriately. The partner of the Respondent who completed the particular form ticked the box opposite the statement “I intend to defend all of this Claim” and wrote immediately beside it:- 
“If it is deemed to have been served on time”.
The box opposite the statement “I intend to contest jurisdiction” was not ticked.
9.	On 17 June 2008 an employee of the Court Service sent out the standard form to inform the Appellant that the Respondent had filed an Acknowledgement of Service. The form was sent to the Appellant because, at this stage, Messrs Hodge Jones and Allen were not on the record.
10.	On 19 June 2008 Messrs Hodge Jones and Allen wrote to the Respondent in the following terms:- 
“We refer to your letter of 13 June 2008 and your Acknowledgment of Service, the contents of which had been noted.
We enclose, for your attention, a copy of our letter to the High Court of even date, which we trust is self-explanatory.
We would like to reiterate that whilst we appreciate that your consent was not obtained prior to faxing our client’s Claim Form, we do not believe that your firm has suffered any prejudice as a result and in this regard, we would be grateful if you would confirm whether it is your intention to make an application to strike out our client’s claim.”   
The letter addressed to the High Court of Justice contained the following paragraphs:- 
“We have noted the Defendant’s comments in relation to the service of our client’s Claim Form and would respond as follows:- 
We accept service of the Claim Form did not comply with CPR 6PD3 in that the written consent of the Defendant was not obtained prior to faxing the Claim Form on 6 June 2008 (for which we apologise), but confirm that this was a result of the shortness of time available to us to serve the Claim Form in time, our client only being able to attend our offices at 3.00pm that day. The letter to the Defendant was immediately prepared and in order to meet the 4.00pm deadline, the letter was faxed on completion. A copy of the fax confirmation sheet is enclosed.  
However we note that the Defendant’s headed note paper makes no reference to it not accepting the service by fax and believe that had we had sufficient time to request their written confirmation and for them to have faxed us the same, they would have agreed to service by fax in any event. We do not believe that any prejudice had been suffered by the Defendant in only being receipt of the faxed copy of the Claim Form by 6 June 2008.”
11.	By letter dated 26 June 2008 Messrs Hodge Jones and Allen took a somewhat different stance. They wrote:- 
“….in relation to the service of our client’s Claim Form, we would draw your attention to the full wording of Practice Direction 3.1 in particular 3.1(2) which states that the “the following shall be taken as sufficient written indication for the purposes of paragraph 3.1(1)(a) a fax number set on the writing paper of the legal representative of the party who is to be served.” As a law firm yourself as well as the Defendant this naturally applies to your own headed note paper. In the circumstances, we believe that we have affected good service of our client’s Claim Form in accordance with CPR 6.2 and intend to file the appropriate Certificate of Service. Please confirm that you will raise no objection to the same.”
The letter continued by seeking an extension of time for service of the Particulars of Claim. The letter provoked an immediate response from the Respondent. It rejected the application for an extension of time for serving the Particulars of Claim. The letter contained no express provision about whether or not the Respondent was pursuing any point about the service of the Claim Form but it did assert that there was a failure to serve the proceedings within the prescribed time limit thereby, at least impliedly, keeping the point alive.
12.	On 4 July 2008 a Particulars of Claim and Schedule of Damage was served on behalf of the Appellant.
13.	On 29 July 2008 Messrs Hodge Jones and Allen served upon the Respondent the application which was considered by Master Rose. The order sought in  the application was in the following terms:- 
“An Order dis-applying CPR PD6.2 to allow for effective service of the Claim Form on 6 June 2008 by facsimile pursuant to CPR 6.9”
At first blush, at the very least, the form of order sought would seem to amount to an acknowledgment that the Claim Form had not been served in accordance with CPR 6.2.
Was service of the Claim Form valid? 
14.	CPR 6.2(1)(e) provides that a document may be served by fax or other means of electronic communication in accordance with the relevant Practice Direction. The relevant Practice Direction is 6PD.3. It provides:- 
“Subject to the provisions of paragraph 3.3 below, where a document is to be served by electronic means – 
(1) The party who is to be served or his legal representative must have previously expressly indicated in writing to the party serving  - 
(a) that he is willing to accept service by electronic means;
(b) the fax number, e-mail address or electronic identification to which it should be sent; and
(2) the following shall be taken as sufficient written indication for the purposes of paragraph 3.1(1) – 
(a) a fax number set out on the writing paper of the legal representative of the party who is to be served; or 
(b) 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
3.2 Where a party seeks to serve a document by electronic means he should first seek to clarify with the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means including the format in which documents are to be sent and the maximum size of attachment that may be received. 
3.3…….
3.4…..”
15.	In my judgment the party to be served in the instant case was the Respondent. It is common ground that before it could be served by electronic means it must previously have expressly indicated in writing its willingness to accept such service. There is no suggestion that it had done so in this case. 
16.	Mr Burroughs submits that in the context of the present case the Respondent, effectively, had a dual capacity. It was not only a party but it was a legal representative.
17.	That submission was made to Master Rose. He dealt with it in the following passage of his judgment:- 
“10.	I hold that this Defendant was not acting as a legal representative at the time when the fax was sent at 3.15 on the afternoon of the 6 June 2008. I find it quite impossible to reach the conclusion that the Defendant could be regarded as acting as a legal representative, not least because the definition of legal representative in the interpretation contained in CPR 2.3 is this: 
“legal representative is a barrister or solicitor, solicitor’s employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990) who has been instructed to act for a party in relation to a claim”. 
11.	It is not, in practical terms, possible to regard Lass Salt Garvin as being their own legal representative in circumstances where they were unaware of the issue of this Claim Form and unaware that it was about to be served on them on the afternoon of the 6 of June 2008.”
18.	I agree, without reservation, with the reasoning of Master Rose. I cannot improve upon it. I adopt it and, accordingly, I agree with the Master that the Claim Form was not validly served when it was sent by fax in the afternoon of 6 June 2008.
19.	I should add for completeness that in paragraphs 14 and 15 of his judgment Master Rose gave additional reasons why he considered the Claim Form had not been served validly. It suffices that I say that I agree with the analysis contained within those paragraphs.
Should the Court dispense with service?
20.	CPR 6.9(1) provides that the Court may dispense the service of a document. In the context of a case such as the present, however, it is common ground that the Court should dispense with service only if the criteria laid down in Kuenyehia and Others v International Hospital Group Limited [2006] EWCA Civ 21 are met. Those criteria are set out in paragraph 26 of the judgment of Neuberger LJ:- 
“…………first, it requires an exceptional case before the Court will exercise its power to dispense with service under r6.9, where the time limit for service of the Claim Form in r7.5(2) has expired before service was effected in accordance with CPR part 6. Secondly, and separately, the power is unlikely to be exercised save where the Claimant has either made an ineffective attempt in time to serve by one of the methods permitted by r6.2, or has served in time in a manner which involved a minor departure from one of those permitted methods of serving.”
In the course of that same paragraph Dyson LJ also recognised that it was not possible to give an exhaustive guide upon the circumstances in which it would be right to dispense with service of the Claim Form.
21.	Recognising the need to categorise this case as exceptional, Mr Burroughs submits that the feature which makes such a finding permissible is the fact that the Respondent is also a firm of solicitors. He submits that a firm of solicitors, inevitably, would have consented to service by fax in a case such as the present one had their consent been sought in advance of service. In paragraph 28 of the judgment in Kuenyehaia  Neuberger LJ said that there were good practical reasons why written consent of the person to be served needed to be obtained before service by fax were permitted and he adopted as those good practical reasons the reasons which had been provided by the judge at first instance in that case. I quote:
 “first, the stipulation in paragraph 3.1(1) of the Practice Direction was included because a Defendant might not want to be served by fax owing to the risk that the fax might be switched off or in some way disabled, and because faxes are less secure than most other means of communication”.
Mr Burroughs submits that such consideration do not apply when the party to be served is firm of solicitors. The solicitors will have procedures in place to ensure that the fax machine is switched on; service by fax on a solicitor is no less secure than any other methods of service.
22.	I agree with Master Rose that the fact that the Respondent was also a firm of Solicitors does not make this an exceptional case. The fact that the Respondent is a firm of solicitors is simply one of the factors which must be taken into account in reaching a value judgment about whether or not the case is exceptional.
23.	In my judgment rather than being an exceptional case which permits the dispensing with service this is a case where it would be unjust to dispense with service. I say that for these reasons. The attempt at service was made on the last possible day permitted and was not in accordance with the Rules. No prior notification of a claim had been made albeit that the events giving rise to the claim had taken place more than 6 years previously. The Appellant had been advised to serve the Claim Form by Miss Brown on 30 May 2008 and he had not done so. He must have known or is to be taken as knowing that he could have served the Claim Form upon the Respondent by taking it to the Respondent’s office. The Appellant lived no more than a comparatively short tube or bus ride from the Respondent’s office. Even on 6 June 2008 it would have been possible to serve the Claim Form at the Respondent’s office. The offices of Hodge Jones and Allen and the offices of the Respondent are sufficiently close that a person could have set off from the offices of Hodge Jones and Allen at 3.00pm and effected service that afternoon in time. I am satisfied, completely, to repeat, that it would be unjust to dispense with service in this case.
24.	It follows that I would, unhesitatingly, have reached the same conclusion as the Master upon the points which were raised before him.
The New Point
25.	Mr Burroughs, on behalf of the Appellant, seeks my permission to amend the grounds of appeal. He wishes to add this ground:- 
“The Defendant, having filed an Acknowledgement of Service on 17 June 2008, is to be treated as having accepted the Court’s jurisdiction to try the claim pursuant to CPR 11.5  because it did not make an application to dispute the Court’s jurisdiction to try the claim within 14 days after filing the Acknowledgement of Service.”
26.	This ground of appeal appears in a document which bears the date 16 December 2009. I am quite content to accept Mr Burrough’s explanation that the true date when the ground was formulated was 16 January 2009. The amended ground of appeal was sent to this Court under cover of a letter 19 January 2009 i.e. the day before the hearing of the appeal. As I understand it the Respondent first became aware of this ground of appeal at or about the same date.
27.	Mr Burroughs accepts that the point encapsulated in the new ground was not taken before the Master. Accordingly my permission is being sought not just for a very late amendment but for an amendment which raises a point not considered by the Court below. 
28.	CPR 52.8 confers upon the Court the power to amend a notice of appeal. The commentary to that rule in the current edition of the White Book suggests that if the proposed amendment raises a point which was argued in the lower Court and if the amendment is sought timeously such an amendment may well be permitted. However, I have said, this proposed amendment seeks to raise a new point.
29.	In Jones v MBNA International Bank June 30, 2000, unrep the Court of Appeal refused an application to make amendments raising new grounds of claim. In his judgment May LJ stated:- 
“Civil trials are conducted on the basis that the Court decides the factual and legal issues which the parties bring before the Court…. Normally a party cannot raise in subsequent proceedings claims or issues which could or should have been raised in the first proceedings. Equally, a party cannot, in my judgement, normally seek to appeal a trial judge’s decision on the basis of a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as general principle is, in my view, obvious. It is not merely of a matter of efficiency, expediency and costs but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the Court requires, to know what the issue are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case and generally how to conduct a case; and, by the Court, what case management and administrative decisions to make and give, and the substantive decision of the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if the party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the Court would not apply the general principle which I have expressed.”
30.	Mr Burroughs submits that the full force of this reasoning should not apply in the instant case. He submits that May LJ’s observations were addressed to the principles which were applicable when deciding whether to grant an amendment to raise a new point after a substantive trial in the court below. He submits that a somewhat more relaxed view should be taken of “new points” if, as here, they are in the nature of points of law and practice and which surface at an early stage of the proceedings.
31.	I accept, entirely, that May LJ’s judgment was given in the context of an appeal after a contested trial. It seems to me, however, that many of the features which the Learned Judge highlighted as to why the Court will be very slow to permit a new point to be raised on appeal are features which apply with very significant even if not equal force in the context of an appeal such as the present.
32.	In the instant case, further, there is the added problem for the Appellant that the proposed amendment was notified to the Respondent so late in the day. Master Rose gave his judgment on 12 August 2008. The parties exchanged comprehensive Skeleton Arguments about the points dealt with by the Master and the new point first surfaced on the day before the appeal is to be heard.
33.	Notwithstanding the late notice of this point Mr Kirby for the Respondent was able to put in a Supplemental Skeleton Argument. In that supplemental Skeleton Argument he advances very powerful reasons why I should refuse permission for the amendment. Additionally, however, he deals with the point of substance.
34.	I heard oral arguments about whether or not permission should be granted and, also upon the substantive point. There is always a temptation to grant permission for an amendment when the substantive point to which the amendment is addressed is argued comprehensively. I resist the temptation to permit the amendment simply because, in the end, Mr Kirby on behalf of the Respondent was able to mount cogent arguments upon the substantive issue.
35.	The point taken by Mr Burroughs arises by virtue of a decision of the Court of Appeal in Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203. That decision was handed down on 21 November 2007. It was apparently reported in the Times (as a law report) on December 28, 2007. It is referred to, prominently, in the Notes to Part 11 of the current edition of the White Book which was published in 2008. The plain fact is that Hoddinott had been in circulation for many months prior to the hearing before the Master. 
36.	Mr Burroughs frankly told me that he had been unaware of the decision in Hoddinott until making his final preparations for the hearing of this appeal. It is to be inferred that his instructing solicitor was unaware of it; it also appears very likely that the Respondent was unaware of the decision as was Mr Kirby. 
37.	Boiled down to its essentials the reason why the point now raised was not taken before Master Rose was because members of the legal profession were unaware of a relevant Court of Appeal decision. If that decision had been produced days or even weeks before the hearing before the Master that lack of knowledge would be entirely understandable. That, however, is not this case. 
38.	In my judgment it cannot be a proper basis for granting permission to amend a Notice of Appeal to raise a new point not taken before the court below that the legal representatives of the Appellant were unaware of a decision of the Court of Appeal published many months before the hearing at first instance.
39.	In the light of the reasoning expressed in the paragraphs immediately preceding and also taking into account the general considerations set out by May LJ in Jones I have reached the clear conclusion that this is not a case in which I should grant permission to amend. Accordingly the application is refused. That means that this appeal must be dismissed.
40.	I have considered whether I should deal with the substantive point raised in the proposed new ground of appeal even though I have refused permission for the amendment. I have decided not to do so. Nothing would be achieved by obiter remarks. Further I am conscious that, in part, if not mainly, Mr Kirby’s response to the substantive point is dependent upon my willingness to grant his client an indulgence by extending time for applying to contest the jurisdiction of the court. It seems to me that the substantive point raised by the proposed amendment is best considered when it falls squarely for decision.

41.	For the reasons contained in this judgment this appeal is dismissed. I propose to hand down this judgment at 10.00am on 28 January 2009. I propose to make an order that the appeal be dismissed and that the Appellant should pay the Respondent’s costs of the appeal. If the Respondent wishes me to assess costs summarily it should serve a schedule on the Court and the Appellant (if it had not done so) by 12.00 noon 26 January 2009. By 12.00 noon 27 January the parties should provide written submissions upon the Schedule and I will then determine the appropriate amount without the need for any appearance by the parties at the handing down of the Judgment.