Thorne v Lass Salt Garvin (A Firm)

Service of a claim form by fax is ineffective where the recipient has not previously given the express written indication required by the relevant practice direction. A solicitor firm does not become its own legal representative merely because it is also a party. The fact that the recipient is a firm of solicitors may be considered, but does not by itself make a case exceptional for the purpose of dispensing with service.

Dispensation with service after expiry of the time limit is an exceptional remedy. It is generally confined to an ineffective attempt made in time by a permitted method, or a minor departure from such a method. An appellant will not ordinarily be permitted to raise on appeal a new point which could and should have been raised below, particularly where the point is notified shortly before the hearing.

The claimant appealed against an order of Master Rose dated 12 August 2008. The Master had held that service of the claim form by fax on 6 June 2008 was invalid and ineffective, and had refused to dispense with service.

The claim form concerned an intended negligence claim against the defendant solicitors, who had previously acted for the claimant. The defendant had not previously consented in writing to service by fax. The claimant argued that the defendant firm had a dual capacity as party and legal representative, and that its status as a firm of solicitors made the case exceptional. The claimant also sought permission to amend the notice of appeal to raise a new jurisdiction point based on the defendant’s acknowledgement of service.

The issues were whether service by fax was valid, whether service should be dispensed with, and whether the new ground should be admitted.

1. The appeal was dismissed. The court agreed without reservation with Master Rose that the claim form had not been validly served by fax. Under CPR 6.2 and Practice Direction 6, prior express written consent to electronic service was required. The defendant had given no such indication.

2. The defendant was not acting as the claimant’s legal representative when the fax was sent. It could not be treated as its own legal representative, particularly when it was unaware that the claim form had been issued and was about to be served.

3. The criteria in Kuenyehia v International Hospital Group Ltd [2006] EWCA Civ 21 governed the application to dispense with service under CPR 6.9(1). Dispensation required an exceptional case and was unlikely unless there had been an ineffective attempt in time by a permitted method, or service in time involving only a minor departure from a permitted method.

4. The defendant’s status as a firm of solicitors was only one factor in the value judgment and did not make the case exceptional. It would instead be unjust to dispense with service because the attempt was made on the final day, without compliance with the rules, after no prior notification of the claim, and when personal service could reasonably have been effected.

5. Permission to amend the notice of appeal was refused. Applying the general approach in Jones v MBNA International Bank (30 June 2000, unreported), an appellant should not ordinarily raise on appeal an issue which could and should have been raised below. The proposed point had been available for many months and was notified only on the eve of the hearing. The court declined to determine its substance, stating that obiter observations would serve no useful purpose.

6. The claimant was ordered to pay the defendant’s costs of the appeal.

• High Court (Queen's Bench Division): appeal from Master Rose’s order dated 12 August 2008 dismissed. Permission to amend the notice of appeal was refused.