Anderton v Clwyd County Council (No 2) (Bryant v Mike Beer Transport Ltd, Chambers v Southern Domestic Electrical Services Ltd, Cummins v Shell International Manning Services Ltd, Dorgan v Home Office)

Under the Civil Procedure Rules 1998, the deemed date of postal or fax service is fixed by rule 6.7. Evidence that the defendant actually received the claim form earlier cannot rebut it. Rule 2.8 does not exclude weekends when calculating the second day after first-class posting.

The permitted methods of service are exhaustive unless the court authorises an alternative. A retrospective order dispensing with service may nevertheless be made under rule 6.9 in exceptional circumstances, particularly where a permitted method was attempted in time and the defendant received the claim form within the service period.

Permission to serve outside the jurisdiction within the six-month period is governed by the special provisions in Part 6. The restrictive criteria for a post-expiry extension under rule 7.6(3) do not apply directly or by analogy.

Five appeals concerned the service of claim forms under the Civil Procedure Rules 1998. In Anderton v Clwyd County Council, Bryant v Mike Beer Transport Ltd, Chambers v Southern Domestic Electrical Services Ltd and Dorgan v Home Office, claim forms sent by first-class post or fax near the end of the service period were actually received before expiry but were arguably deemed served afterwards. The lower courts differed over weekend calculations and the availability of retrospective dispensation under rule 6.9.

Cummins v Shell International Manning Services Ltd arose from an order permitting service outside the jurisdiction. The claim form was served abroad within six months of issue, but permission had been sought after the four-month domestic service period. Gray J applied by analogy the restrictive criteria in rule 7.6(3), set aside the Master’s order and struck out the claim.

The common questions were whether deemed service could be rebutted by actual receipt, whether weekends counted, when service could retrospectively be dispensed with, and whether rule 7.6(3) governed permission to serve outside the jurisdiction.

Lord Justice Mummery delivered the single judgment of Lord Phillips of Worth Matravers MR, Mummery LJ and Hale LJ.

1. Disposition. The appeals in Bryant v Mike Beer Transport Ltd, Chambers v Southern Domestic Electrical Services Ltd, Anderton v Clwyd County Council and Cummins v Shell International Manning Services Ltd were allowed. The Home Office’s appeal in Dorgan v Home Office was dismissed.
2. Following Godwin v Swindon Borough Council [2001] 4 All ER 641, the day of service fixed by rule 6.7 is irrebuttable. Actual receipt or attention before the deemed day is legally irrelevant. This construction promotes procedural certainty, serves legitimate case-management aims and does not impair the essence of access to a court under article 6 of the European Convention on Human Rights.
3. Rule 2.8 governs periods prescribed for doing an act. Rule 6.7 instead fixes the day on which service is deemed to occur after another act has been performed. Weekends and bank holidays are therefore not excluded when calculating the second day after first-class posting. The contrary obiter statements in Godwin v Swindon Borough Council and Consignia v Sealy [2002] EWCA Civ 878 were disapproved. Accordingly, Bryant’s claim form was served on Saturday 17 November 2001 and Anderton’s on Sunday 5 November 2000, both within time.
4. The methods in rule 6.2 are exhaustive unless an alternative method is authorised under rule 6.8. The word “may” gives the serving party a choice between the prescribed methods; it does not permit unlisted methods. Separately, rule 7.6(3) restricts the court’s power to extend time after expiry, and the general power in rule 3.1 cannot circumvent that restriction.
5. Rule 6.9 is wide enough to permit both prospective and retrospective dispensation from service, but retrospective dispensation is exceptional. It cannot ordinarily assist a claimant who made no permitted attempt to serve in time. It may assist where a permitted method was attempted within time, the defendant received and attended to the claim form within the period, and further formal service would serve no practical purpose. The court may also consider the explanation for non-compliance, criticism of the claimant or advisers, and prejudice to each side. Those exceptional conditions justified dispensation in Chambers and Dorgan.
6. Where a claim form is served outside the jurisdiction within the six months allowed by rule 7.5(3), permission is governed by the special provisions in Part 6. Neither a four-month application deadline nor the criteria in rule 7.6(3) apply expressly, impliedly or by analogy. The decision in National Bank of Greece v Outhwaite [2001] 1 Lloyd’s Rep 652 was distinguished because of its representative proceedings. Master Murray’s permission in Cummins was restored and the second defendant’s application to set it aside was dismissed.

1. Court of Appeal: In Anderton v Clwyd County Council (No 2) and the four related appeals [2002] EWCA Civ 933, the court allowed the appeals in Anderton, Bryant, Chambers and Cummins and dismissed the Home Office’s appeal in Dorgan.
2. Queen’s Bench Division—Cummins: Gray J had set aside Master Murray’s order permitting service outside the jurisdiction and had struck out the claim against Shell International Manning Services Ltd. The Court of Appeal reversed those parts of his order.
3. Queen’s Bench Division—Anderton: McCombe J had dismissed an appeal from Master Ungley and held the claim form out of time. The Court of Appeal held that first-class posting was proved and that deemed service occurred within time.
4. Manchester County Court—Bryant: His Honour Judge Holman had struck out the claim as served out of time. The Court of Appeal set aside that order and reinstated the action.
5. Cardiff County Court—Chambers: District Judge Wyn Rees had struck out the claim and refused dispensation under rule 6.9. The Court of Appeal allowed the appeal, dispensed with service and entered judgment for damages to be assessed by consent.
6. Brentford County Court—Dorgan: His Honour Judge Marcus Edwards QC had dispensed with service under rule 6.9. The Court of Appeal dismissed the Home Office’s appeal and preserved that order.