Wilkey v British Broadcasting Corpn

Where a claimant attempted service by a permitted method and the defendant received the claim form within the service period, the court has power under Rule 6.9 of the Civil Procedure Rules 1998 to dispense with formal service.

For service occurring before the decision in Anderton, that discretion should ordinarily favour the claimant unless the defendant establishes prejudice, excluding loss of a limitation defence, or another good reason for refusal. Avoidable delay or an apparently weak claim will not generally suffice. For service occurring after Anderton, the court should ordinarily refuse relief and apply the service rules strictly.

The claimants brought proceedings for libel and malicious falsehood arising from a radio broadcast criticising their product. The claim form was issued shortly before expiry of the one-year limitation period and physically delivered to the defendants’ legal department on the last day permitted for service. Under the deemed-service rule, however, service occurred one day late.

The district judge treated actual delivery as effective service in time. Gray J allowed the defendants’ appeal and dismissed the action after Godwin v Swindon Borough Council [2002] 1 WLR 997 established that the deemed date could not be rebutted. Following Anderton v Clwyd County Council and other appeals [2002] 3 All ER 813, the claimants appealed on the confined ground that the Court of Appeal should dispense with service under Rule 6.9 of the Civil Procedure Rules 1998.

The central issue was how that discretion should be exercised where a permitted method had brought the claim form to the defendant’s attention within time, but formal service was deemed late.

1. Appeal allowed unanimously. Simon Brown LJ delivered the leading judgment. Buxton LJ and Carnwath LJ agreed. The court dispensed with service under Rule 6.9 of the Civil Procedure Rules 1998, permitting the action to proceed.

2. Anderton v Clwyd County Council and other appeals [2002] 3 All ER 813 established a material distinction between two categories. Rule 6.9 cannot be used where the claimant made no permitted attempt at service within time and therefore seeks, in substance, a retrospective extension prohibited by Rule 7.6(3). The discretion is available where the claimant attempted a permitted method within time and the defendant or legal adviser actually received the claim form before expiry of the service period. In the latter category, dispensation excuses formal proof of service rather than authorising service out of time.

3. Simon Brown LJ held that, for category 2 cases arising before Anderton, the discretion should ordinarily be exercised for the claimant. The defendant must establish prejudice beyond the loss of a limitation defence, or another good reason for refusal. Avoidable delay in issuing or serving the claim form will not generally be sufficient because some such delay is inherent in these cases. Nor will the apparently unpromising nature of the claim ordinarily justify refusal.

4. For category 2 cases arising after Anderton, Simon Brown LJ stated that relief should ordinarily be refused. Claimants can no longer rely on uncertainty about the service rules, and the courts should apply the strict approach required to preserve certainty under the deemed-service regime. Carnwath LJ agreed that the transitional period during which the new procedural culture became established had ended.

5. The defendants had suffered no relevant prejudice from the one-day deemed delay. The claimants’ earlier delay, the nature of the libel proceedings and criticisms of the special-damages schedules did not amount, separately or cumulatively, to another good reason for refusing relief. The respondents were ordered to pay the appellants’ costs of the appeal, subject to the specified costs orders for the proceedings below.

1. Court of Appeal: Allowed the claimants’ appeal unanimously and exercised the Rule 6.9 discretion under the Civil Procedure Rules 1998 to dispense with service.

2. High Court, Queen’s Bench Division: Gray J allowed the defendants’ appeal from the district judge, set aside the finding of timely service and dismissed the action. His decision preceded Anderton v Clwyd County Council and other appeals [2002] 3 All ER 813, so he was not asked to exercise the category 2 discretion subsequently recognised by that decision.

3. District Court at Cardiff: District Judge North dismissed the defendants’ application to set aside service. He held that actual delivery on the final day rebutted the deemed-service provision and constituted timely service.