Liverpool County Court (Deputy District Judge O'Neill 30.4.02, 19.12.02, 20.1.03)

 

Jonathan Clarke, counsel for the Claimant (instructed by Lees Lloyd Whitley)

 

Timothy Holloway, counsel for the Defendant (instructed by the Treasury Solicitor)

 

The Claimant was employed by the Prison Service as an officer support grade. On 9 November 1998 she was injured at work whilst opening prison gates as a result of defects in the gates. On 8 November 2001 she issued a claim form against the Home Office. On 8 March 2002 (the last day for service), her solicitors served the proceedings on the Treasury Solicitor (as required by s.18 Crown Proceedings Act 1947). Service was by fax at about midday.

 

The Defendant applied to have the claim struck out on the grounds that by CPR 6.1 & 50 & Sched 2 CCR Ord 42 r.7(2), service by fax on the Crown is not permitted.

 

The Claimant argued that (1) although, by CPR 50 & Sched 1 RSC Ord 77 r.4(2), the use of fax to effect service on the Treasury Solicitor is not permitted in High Court proceedings, it is permitted in county court proceedings, in view of the use of the words “must” in the High Court rules and “may” in the county court rules. (2) If service by fax in Crown proceedings is not permitted by the CPR, then such prohibition is ultra vires the Civil Procedure Act 1997. (3) As the Claimant’s solicitors had served proceedings on the Treasury Solicitors by fax on countless previous occasions over the years and the Treasury Solicitor had never once objected to use of this method prior to making this application, then the Defendant was estopped by convention from insisting on its rights under the rules. (4) As the proceedings were served in time but by a non-permitted method, the Claimant did not need a retrospective extension of time to allow service to take place in time, therefore the error in method could be cured by an order under CPR 3.10 without being caught by the rule in Vinos v. Marks & Spencer [2001] 3 All ER 784. (5) The state’s conduct in having court rules which imposed an absolute time limit for service of proceedings and which were ambiguous (“must” and “may” mean the same thing) and which granted the State an unnecessarily unique status in respect of service and its conduct in accepting service by fax and then unilaterally and without notice declining to do so at a time when it was too late to serve by other means all amounted to a breach of the Claimant’s right to a fair trial under Article 6 ECHR akin to that in Bellet v. France [1995] ECHR 2305/04.

 

The Deputy District Judge reserved his judgement and said he would send it out prior to the day listed for it to be delivered. Accordingly, he did send out his written judgment, in which he rejected the Claimant’s arguments and allowed the Defendant’s application. Regarding the application under CPR 3.10, he found that the dicta of May LJ in the cases of Vinos and Godwin v. Swindon BC [2001] EWCA Civ 1478, [2002] 1 WLR 997 [2001] 4 All ER 641 meant that unless the tight requirements of CPR 7.6(3) could be met, then defective service could not be remedied after the time for service had expired.

 

After the written judgment was sent out, but before the day listed for its delivery, the Court of Appeal delivered its judgment in Anderton v. Clwyd CC [2002] EWCA Civ 933, [2002] 1 WLR 3174, [2002] 3 All ER 813, that defective service could, in some cases, be cured by a discretionary order under CPR 6.9 retrospectively dispensing with the need for service. This was followed by the Court of Appeal’s decision in Wilkey v. BBC [2002] EWCA Civ 1561, [2003] 1 WLR 1, [2002] 4 All ER 1177, in which the matters governing the exercise of the discretion under CPR 6.9 where considered.

 

In the light of these decisions, the Claimant invited the Deputy District Judge not to deliver his intended judgment, but to reconsider the matter in the light of the decisions in Anderton and Wilkey as he was entitled to do if there were exceptional circumstances and/or as it was in accordance with the overriding objective to do so – Stewart v. Engel [2000] 1 WLR 2268.

 

HELD: Service by fax in Crown proceedings was not permitted under the CPR which were not ultra vires. The Claimant had had plenty of time to issue and serve and the rules as to service on the Crown were clear, so her rights under Article 6 were not infringed. The Claimant could not rely upon the Defendant’s dealings with other claimants in order to establish an estoppel in her favour. As the case of Anderton had cast a radically different light on the question of whether defective service of a claim form could be cured, this amounted to an exceptional circumstance in which it was right to reconsider the question of whether the defective service could and should be cured in this case. Upon such further reconsideration and in view of the Treasury Solicitor’s conduct in having accepted service without objection on countless prior occasions and in not giving any prior warning that she was no longer willing to do so, these were exceptional circumstances justifying an order under CPR 6.9 dispensing with the need for service. Although, Mummery LJ, in Anderton repeatedly refers to "permitted method of service", this did not mean that service by fax (which would have been a permitted method but for the peculiar rules relating to the Crown) took this claim outside of the ratio of the decision in Anderton. Accordingly, the application to strike out the claim failed.