Kuenyehia & Ors v International Hospitals Group Ltd.

The power to dispense with service of a claim form after the service period has expired is exceptional. It is unlikely to be exercised unless the claimant attempted service in time by a permitted method or made only a minor departure from such a method.

Faxing a claim form without the recipient’s prior written consent is neither an attempt to use a permitted method nor a minor departure from one. Actual receipt and absence of prejudice do not ordinarily justify dispensing with service. Prejudice to the defendant may weigh against relief, but its absence does not usually support relief.

The claimants issued proceedings concerning remuneration allegedly due under an agreement for assistance in procuring hospital construction contracts. On the final day for service, their solicitors delivered the claim form to solicitors who lacked authority to accept it and faxed it to the defendant without prior written consent.

Master Eyre dispensed with service under rule 6.9 of the Civil Procedure Rules 1998. Crane J upheld that result, although for different reasons, treating the fax transmission as a comparatively minor departure from a permitted method.

The defendant appealed. The central issue was whether dispensing with service fell within the exceptional parameters established by the Court of Appeal authorities governing late or defective service.

1. Appeal allowed. The order dispensing with service was set aside. The renewed application for permission to argue that the refinements made in Anderton, Wilkey and Cranfield were inconsistent with Godwin was refused.

2. Rule 6.9 of the Civil Procedure Rules 1998 conferred a discretion to dispense with service. Where the rule 7.5(2) period had expired without service complying with Part 6, the discretion had to be exercised within the parameters established by the earlier Court of Appeal authorities. Relief required an exceptional case. It was also unlikely unless the claimant had attempted service in time by a method permitted under rule 6.2, or had served in time with only a minor departure from such a method. No exhaustive statement of qualifying circumstances was possible.

3. Faxing the claim form without the defendant’s prior written consent was not a minor departure. Rule 6.2(1)(e), read with paragraph 3.1(1) of the Practice Direction, precluded service by fax unless consent had first been given in writing. This differed from using an authorised method, such as post, while departing only from its prescribed machinery. Nor was the transmission an ineffective attempt to use a permitted method.

4. The case was not exceptional. Earlier fax correspondence, actual receipt by the legal department and the absence of prejudice did not justify relief. The claimants could readily have sought consent or delivered the claim form to the defendant’s known office. The absence of prejudice cannot usually support dispensing with service, although prejudice to a defendant may weigh against relief.

5. Delivery to the defendant’s solicitors was also ineffective. They had neither authority to accept service nor a nominated address for service. Serving solicitors who had not been nominated was not a minor departure from a permitted method.

6. The claimants’ solicitors had waited until the final day despite having the information and means required for valid service. The facts therefore fell outside rule 6.9’s exceptional jurisdiction. The court unanimously allowed the defendant’s appeal and set aside the dispensing order.

1. Court of Appeal (Civil Division): Allowed the defendant’s appeal in [2006] EWCA Civ 21, refused the renewed application for permission to appeal on the additional ground, and set aside the order dispensing with service.

2. High Court, Queen’s Bench Division: Crane J upheld the dispensing order on 10 February 2005, treating the fax transmission as a comparatively minor departure from a permitted method of service.

3. Master: Master Eyre held that service had not complied with Part 6 of the Civil Procedure Rules 1998, but dispensed with service under rule 6.9.