You’ve been served! Or have you? An analysis of how the courts deal with the failure to serve a claim form in the prescribed way
The recent decision in Barton v Wright Hassall LLP  EWCA Civ 177 provides a cautionary tale, emphasising the importance of complying with the Civil Procedure Rules (CPR) when serving a claim form.
There are strict requirements that must be met before a claim form can be served by fax or other electronic means such as email (CPR 6.15 and CPR PD 6A). In the event that a claimant fails to comply with the CPR, the court has discretion to allow the service of documents by alternative means, if steps have been taken to bring
the claim form to the defendant’s attention (CPR 6.15 (2)). Nevertheless, this case demonstrates that this order may be of limited use to litigants who have missed the deadline for serving documents in the correct manner. In Barton, the claimant tried to argue that his service of the claim form by email should constitute good service, despite non-compliance with the CPRs. His appeal was unsuccessful.
In deciding whether an order to validate service will be made, the court will ask two questions:
- Why was the claim form not served in the ordinary way during the period of validity?
A critical factor for the court to consider is whether the claim form came to the defendant’s attention. The court emphasised that even if the defendant does become aware of the contents of the claim form, this does not, by itself, constitute enough for an order to be made that the claim form had been served.
The court will also look at the reason for the failure to serve the claim form in the prescribed way. An acceptable reason for such a failure might be something outside the control of the defaulting party, such as incapacitation or the recipient being particularly obstructive and un-cooperative. The court was unequivocal in finding that ignorance of the legal procedures under the CPR is not a satisfactory reason for the claim form not being served in the ordinary way.
If the court is satisfied that the claimant has a good answer to question one, it will consider question two.
- Is there a good reason to make the order sought?
The court will consider the defendant’s conduct as a factor when deciding whether to grant an order. In Power v Meloy Whittle Robinson  EWCA Civ 898, the fact that the defendants were having discussions and corresponding with the claimant’s solicitors as if the claim form had been served correctly, was deemed enough of a good reason to grant the order.
However, the court in Barton made clear that the defendant has no obligation to inform the claimant if the service of the claim form is not valid. They are entitled to wait until the deadline for service has expired.
The decision reiterates the importance of obtaining specialist legal advice at an early stage. Lord Justice Moore-Bick in R (Hysai) v Secretary of State for the Home Department  1 WLR 2472 emphasised that although the CPR are widely accessible online, it is essential that ordinary people seek professional help to fully understand and interpret the rules about how proceedings are conducted.