Brown & Ors v Innovatorone Plc & Ors

Service of a claim form on a defendant’s solicitor by fax is valid only where the rules permit service on that solicitor and the solicitor has the necessary authority or has notified the claimant that he is instructed to accept service. A fax number on solicitors’ writing paper identifies a permitted method of service; it does not, by itself, identify the person on whom service may be made.

The power to validate steps already taken under CPR rule 6.15 requires a good reason. The absence of prejudice is ordinarily insufficient. The court should apply the power rigorously where the claimant’s solicitors left service until the last moment and could have complied with the ordinary rules.

The claimants brought proceedings concerning alleged fraud and misappropriation connected with investment schemes. They amended the claim form to add Mr Bailey and Collyer Bristow as defendants.

Shortly before expiry of the four-month service period, the claimants’ solicitors faxed the amended claim form to solicitors acting for those defendants. The solicitors had provided fax numbers on their writing paper, but neither had notified the claimants that they were authorised to accept service of the claim form. The defendants challenged service. The claimants alternatively sought an order under CPR rule 6.15(2) that the steps already taken should stand as good service.

The issues were whether service by fax was valid and whether there was a good reason retrospectively to validate it.

1. Valid service. The claim form was not validly served on either defendant. CPR rule 6.3 and Practice Direction A address methods of service. They do not determine when service may be made on a solicitor. That question is governed by CPR rule 6.7 and the structure of Part 6. A fax number on a solicitor’s writing paper is sufficient written indication of willingness to accept service by fax only where the solicitor is otherwise a proper person on whom service may be made. It does not establish authority to accept service.
2. Meaning of “acting for”. Practice Direction A paragraph 4 applies only where the solicitor is acting for the party to be served in the relevant proceedings and in circumstances permitting service on the solicitor. The reasoning in Maggs v Marshall supported that interpretation.
3. Alternative service. CPR rule 6.15(2) permits the court to validate steps already taken for the purpose of bringing the claim form to the defendant’s attention. It does not require that the defendant actually received the claim form within the original service period. However, rule 6.15 requires a good reason, and the court should not graft onto it the more demanding exceptional-circumstances test in rule 6.16.
4. The absence of prejudice is not ordinarily enough. The court should adopt a rigorous approach to a retrospective application, particularly where the claimant could readily have complied with the rules, left service until very late, and made an error for which the defendants were not responsible. Certainty in procedural rules and avoidance of satellite litigation supported refusal of relief.
5. The defendants’ applications were granted and the claimants’ applications were rejected. The claim form had not been served on either defendant.

First-instance decision. The judgment does not state any prior appellate decision in this litigation.