Peacocks Ltd v Taylor

Under CPR 6.4(2), service on a solicitor is valid where the solicitor is authorised to accept service and has notified the serving party in writing of that authority. The authority and notification may be established by construing the solicitor’s correspondence objectively in its factual and procedural context. Under CPR 6.9, dispensing with service after the service period and limitation period have expired is ordinarily impermissible but may be justified exceptionally. The court must apply the overriding objective and balance the parties’ conduct, the reasons for late service, and all potential prejudice. Expiry of limitation, or the defendant’s prior knowledge of the claim, is insufficient alone.

The claimant companies pursued construction claims concerning defective roofs at a shopping centre. The claim form was sent to solicitors acting for the principal contractor, but those solicitors later asserted that they lacked authority to accept service of the court proceedings. The claimants sought a declaration that service was valid under CPR 6.4(2). Alternatively, they sought an order dispensing with service under CPR 6.9, after the limitation and service periods had expired.

The central issues were whether the solicitors’ correspondence objectively amounted to written notification of authority to accept service, and, if not, whether the circumstances were exceptional enough to justify dispensing with service.

1. Valid service. Under CPR 6.4(2), service on a solicitor requires both authority to accept service and written notification of that authority. The relevant correspondence had to be construed objectively against the background that the parties had been discussing whether the dispute should proceed in arbitration or in the Technology and Construction Court.

2. The instruction that all subsequent correspondence relating to the notice to concur should be sent to the solicitors objectively embraced the claim form. The claim form directly related to the arbitration proceedings and was sent as part of the agreed transition from arbitration to TCC proceedings. The defendant’s in-house solicitor had authorised the relevant letters.

3. The proceedings were therefore validly served under CPR 6.4(2), and the claimants were entitled to a declaration to that effect.

4. Alternative discretion. Had service been invalid, the court would have dispensed with service under CPR 6.9. An application made after the service period and a relevant limitation period had expired would ordinarily fail because it would circumvent CPR 7.6(3). An exceptional order remained available under the overriding objective.

5. Relevant considerations included the parties’ conduct, criticism of either party, the reasons for late service, and all potential prejudice. Expiry of limitation, or the defendant’s knowledge of the proceedings, was insufficient by itself.

6. The circumstances were exceptional. The defendant’s solicitors had contributed to the misunderstanding about service, the parties had nearly agreed a single TCC process, the defendant knew the claim’s detail, and refusal of relief would produce duplication, delay, expense and substantial prejudice.