Court Of Appeal Decision Highlights Dangers Of Filing Claim Form Electronically On Final Day For Service

• Published date: 17 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

The Court of Appeal has held that service of unsealed claim forms did not amount to effective service, and has refused to validate service under CPR 3.10, which allows the court to remedy errors of procedure:Ideal Shopping Direct Limited v Mastercard Incorporated and Visa Europe Limited [2022] EWCA Civ 14.

A claim form filed electronically under the Electronic Working Pilot (which is compulsory for represented parties in a number of courts, including the Business and Property Courts) is not sealed until the document is accepted by the court, and that may not be until the next day or later. A claimant with a deadline for service on the day of filing may therefore be unable to serve a sealed copy of the claim form that day. As the court has held that serving an unsealed claim form is not sufficient, a claimant in that position may find that no effective service can take place.

A claimant who is coming up against a deadline for service should therefore file electronically in sufficient time to allow for any delay before the claim form is sealed. If this will not be possible, the claimant should seek an extension of time from the defendant or, failing that, the court.

Background

The claimants issued proceedings against Visa and Mastercard alleging breaches of competition law. The claims were similar to those made in proceedings between Sainsbury's and Visa and the parties therefore agreed that time for service of the proceedings should be extended until judgment in that action. The final extension agreed was until Friday 17 July 2020, which was one month after the Supreme Court decision in the Sainsbury's case.

On 17 July the claimants filed amended claim forms electronically at court in respect of 16 claims, using, as they were obliged to, the electronic "CE file" system. Automatic notifications were received from the court confirming the documents had been submitted and that they were being reviewed by the court prior to acceptance. The claimants also sent copies of the unsealed claim forms to the defendants that day, purportedly by way of service.

All of the claims were accepted and sealed on 20 July, except for one sealed on 17 July and another on 22 July. In accordance with paragraph 5.4 of PD51O, the claim forms were treated as having been issued on 17 July 2020.

The sealed amended claim forms were served on the defendants later in July. Both defendants applied for orders that the claim forms had not been served in time and the court had no jurisdiction...