Asia Pacific (HK) Ltd. & Ors v Hanjin Shipping Co Ltd (Hanjin Pennsylvania)

A claim form delivered by fax to solicitors who have indicated that they are authorised to accept service is served when the delivery is made by a permitted method, unless the sender clearly indicates that it is supplied for information only or is not being served. The absence of the words “by way of service”, a response pack, or the original rather than a copy may amount to procedural irregularity, but does not necessarily prevent service. Service is assessed objectively from the parties’ communications and conduct. If service has not occurred, an extension under Civil Procedure Rules 1998, rule 7.6 requires all reasonable steps to have been taken. The court may nevertheless dispense with service in sufficiently exceptional circumstances where the claim form was received by the right person through a permitted method in good time and no useful purpose would be served by repeating service.

The claimants owned cargo carried on the vessel “Hanjin Pennsylvania”, which was damaged by an explosion and fire. Their claim was subject to a contractual and rules-based time limit. A claim form was issued on 10 February 2005 and faxed on 21 March to the defendants’ solicitors, who had confirmed that they had instructions to accept service. The accompanying letter enclosed the claimants’ copy of the claim form and referred to possible consolidation, but did not state that the document was sent “by way of service”. No response pack accompanied it.

The issue was whether the fax constituted service within the period prescribed by rule 7.5. In the alternative, the claimants sought an extension under rule 7.6 or an order dispensing with service under rule 6.9.

1. Service by fax. The claim form was served on 21 March 2005. Service is determined objectively by what the parties said and did. The relevant question is whether the document was delivered by a permitted method in circumstances showing that it was not being served. An unexpressed intention cannot alter the objective effect of the delivery.
2. The fax was sent to solicitors who had indicated that they were authorised to accept service. It delivered the claim form by a permitted method and did not state that it was for information only or otherwise exclude service. The reference to awaiting instructions on consolidation was more consistent with the claim being on foot than with proceedings awaiting service.
3. The absence of a response pack, the marking “Claimants Copy”, and the omission of the words “by way of service” did not prevent service. Those matters amounted, at most, to procedural irregularity. The rules did not make those words obligatory.
4. Extension of time. If there had been no service, the claimants would not have taken all reasonable steps within rule 7.6(3). They could have expressly stated that the claim form was being served, used an appropriate copy, and enclosed a response pack. The claimant’s mistaken belief that service had occurred did not satisfy the statutory test.
5. Dispensing with service. Had service not been effective, the circumstances would nevertheless have justified dispensing with service under rule 6.9. The claim form had reached the right solicitors by a permitted method about two and a half months before expiry. Requiring a second delivery would have served no useful purpose, and the defendants would have suffered no relevant prejudice. The court therefore declared that the claim form dated 10 February 2005 was served on 21 March 2005 within the time prescribed by rule 7.5.