Elmes v Hygrade Food Products Plc

An order permitting service by an alternative method under the Civil Procedure Rules r 6.8 operates prospectively. Where no such order was sought or made, r 3.10 cannot retrospectively deem an order to have been made so as to validate service effected by an unauthorised method.

Service of a claim form on an insurer instead of the defendant is service on the wrong party. It is not analogous to service on the correct party under an incorrect name. The absence of prejudice and the overriding objective cannot create a procedural power which the Rules do not confer.

The claimant brought a workplace-injury claim against the defendant. Proceedings were issued on the final day of the primary limitation period. On the final day for service, the claimant's solicitors faxed the claim form to the defendant's insurers rather than to the defendant.

A district judge held that the error could be remedied by deeming service good under CPR rr 3.10 and 6.8. Judge Barclay, on appeal in the County Court, set that order aside. The claimant's second appeal raised whether service in time by an unauthorised method could retrospectively be validated as alternative service.

Appeal dismissed. Simon Brown LJ, with whom Penry-Davey J agreed, held that the court had no power to cure the claimant's error.

1. Rule 6.8 of the Civil Procedure Rules authorises alternative service only by an order made for that purpose. It is prospective in operation. In this case there had been neither an application for alternative service nor an order permitting it.

2. The order sought under r 3.10 would necessarily deem an unmade r 6.8 order to have been made. Rule 3.10 can remedy an error of procedure, but it cannot create that retrospective alternative-service order. The fact that the insurers were handling the claim and that the defendant would suffer no prejudice could not supply the missing power.

3. The court's conclusion accorded with Nanglegan v Royal Free Hospital, in which r 6.8 was treated as incapable of curing an error already made in effecting service. The earlier late-service authorities, Vinos v Marks & Spencer Plc and Kaur v CTP Limited, concerned the separate restrictions on extending time, but were consistent with the limited function of r 3.10.

4. Gregson v Channel Four Television Corporation was distinguishable. It concerned correction of the name of the party actually served, whereas this claim form had been served on altogether the wrong party.

The appeal was dismissed with costs, to be agreed or assessed. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — The claimant's second appeal was dismissed: [2001] EWCA Civ 121 .

• County Court — Judge Barclay allowed the defendant's appeal and set aside the district judge's order deeming service good.

• District Judge — On 14 April 2000, District Judge Field made an order treating service on the defendant's insurers as good service.