Olafsson v Gissurarson (No 2)

Service of a claim form may be dispensed with retrospectively under CPR 6.9 in an exceptional or very unusual case. This includes an ineffective attempt, made in time by a permitted method, where the defendant actually received the claim form and was aware of it. The power remains available despite the expiry of a limitation period, although the court must weigh the loss of the defendant’s accrued limitation defence against the claimant’s loss of a trial on the merits. CPR 7.6 imposes a distinct and stricter test for extending time for service after the permitted period has expired.

The defendant appealed against an order setting aside two default judgments. After that appeal succeeded, the claimant sought to keep the claim alive by asking the court to dispense with service under CPR 6.9, or alternatively to extend time for service under CPR 7.6(3).

The claim concerned alleged internet libel and was subject to a 12-month limitation period. The defendant accepted that he had received the relevant documents, but valid service had failed because of a technical defect in the evidence of service. The central issue was whether the court could retrospectively dispense with service in those circumstances and, if so, whether the discretion should be exercised in the claimant’s favour.

1. CPR 6.9. The court had jurisdiction to entertain a retrospective application to dispense with service. The authorities identified two categories. The exceptional power is unavailable to a claimant who made no timely attempt to serve by a permitted method, but may be available where the claimant attempted such service in time, the attempt was ineffective, and the defendant actually received and was alerted to the claim form.
2. The fact that limitation had expired did not prevent the exercise of the CPR 6.9 power. The court did not read Godwin v Swindon Borough Council [2002] 1 WLR 997 or Elmes as excluding relief under CPR 6.9 in the present category of case. The limitation period was relevant, but the defendant identified no specific prejudice caused by the passage of time.
3. The discretion was exercised in the claimant’s favour. The defect concerned evidence of service rather than the defendant’s receipt of the documents. The defendant accepted receipt and had obtained the benefit of setting aside the default judgments. Refusing relief would prevent determination on the merits, while granting it would allow the claim to proceed without identified serious prejudice. Service of the claim was therefore dispensed with.
4. CPR 7.6. The alternative application was not determined. The rule imposed a distinct threefold requirement after expiry of the service period: all reasonable steps to serve must have been taken but service must nevertheless have been impossible, the application must have been made promptly, and the court must exercise its discretion in the claimant’s favour. The court made no order under that rule.

1. High Court (Queen's Bench Division): The court allowed the earlier appeal against the order of Master Turner dated 23 May 2006, setting aside the default judgments. In this judgment it then dispensed with service under CPR 6.9 and made no order on the alternative CPR 7.6 application.