Normal Service - Hills v Struth

In this recent decision of Ramsey J, the TCC considered whether sending a photocopy of a claim form by post or DX amounts to valid service. In addition, there is a useful comparison in the judgment of the court's approach to relief from sanctions under the old CPR 3.9 and the new version, which applies to all applications made post 1st April 2013.

The claimant was a building contractor engaged by the defendants to demolish and rebuild their house pursuant to a JCT Intermediate Form of Contract. Shortly before Christmas 2012, the final certificate was issued. Given the potentially conclusive effect of that certificate, the claimant commenced proceedings without having complied with the Pre-Action Protocol and in circumstances where it was not in a position to serve particulars of claim. As a result, the claim form was not immediately served on the defendants.

Instead, following a phone call in which the claimant's solicitor proposed that proceedings be stayed to observe the Protocol, he sent a letter by DX to the defendants' solicitor stating that it was enclosing "a copy of the issued Claim Form" and looking forward to receiving a response to the proposed stay. A photocopy of the sealed claim form accompanied the letter.

The defendants' solicitor responded several weeks, later accepting the claimant's solicitor's letter as service of the claim form and arguing that the claimant had failed to serve its particulars within the required 14-day period. The claimant was told either to serve particulars within a further 14 days or make acceptable proposals in relation to a protocol meeting, failing which the defendants would apply to have the claim struck out. The claimant's solicitor immediately responded, arguing that the claim form had not been served but unfortunately the defendants' solicitor never received that letter.

The claimant's solicitor assumed that the subsequent lack of response indicated an acceptance of his position in relation to service and took no further protective measures.

However, the defendants' solicitor, having not received the letter, proceeded to make a successful application to strike out the claim form without the need for a hearing. The claimant then applied to vary or set aside that order and, in the alternative, to extend time for service of the particulars.

Had the claim form been served?

The first issue that the court had to decide was whether sending a photocopy of the sealed claim form by DX amounted to good...