Hills Contractors & Construction Ltd v Struth & Anor

A photocopy of a sealed claim form sent by Document Exchange will generally not constitute valid service within the jurisdiction. The relevant document is ordinarily the claim form issued and sealed by the court, subject to specific exceptions for electronic service. Whether a document was intended to constitute service may also be determined objectively from the parties’ communications and their surrounding circumstances. Where an extension of time is sought after the time for compliance has expired, the application is analogous to relief from sanctions and the court should have regard to the applicable compliance considerations. On the facts, the strike-out order was set aside and time for serving the Particulars of Claim was extended.

The claimant brought proceedings concerning a final certificate issued under a building contract. Proceedings had to be commenced within 28 days to prevent the certificate becoming conclusive. The claimant issued a claim form and sent a photocopy of the sealed form to the defendants’ solicitors, while seeking a stay to allow compliance with the Pre-Action Protocol for Construction and Engineering Disputes.

The defendants treated the photocopy as service, later sought strike-out for failure to serve Particulars of Claim, and obtained an order without a hearing. The claimant applied under CPR 23.10 to set aside the order, arguing that the claim form had not been served. The issues were whether the photocopy constituted a claim form for service purposes, whether the communication objectively amounted to service, and whether time should alternatively be extended.

1. The strike-out order was set aside. The photocopy sent with the letter of 23 January 2013 was not proper service, and the claim form remained valid and effective for service. Time for serving the Particulars of Claim was extended to 15 May 2013.
2. Under CPR 7.2(1) proceedings are started when the court issues a claim form, and under CPR 2.6(1) the court seals it on issue. Accordingly, the general rule under CPR 6.3(1) is that service within the jurisdiction requires the document issued and sealed by the court. A photocopy is insufficient.
3. Electronic service is an exception. Under CPR 6.3(1)(d) and Practice Direction 6A, the electronic copy or print-out represents the issued and sealed claim form, and no additional hard copy is required.
4. Had the document been capable of amounting to service, the question would have been determined objectively by examining what was said and done between the parties. Read against the background of the rushed issue of proceedings and the request for a stay, the letter enclosing a copy of the issued claim form did not objectively communicate an intention to serve it.
5. On the alternative issue, an application to extend time made after expiry is analogous to relief from sanctions. The court therefore had regard to the relevant considerations under CPR 3.9 and the overriding objective. The contractual time bar, the claimant’s attempt to agree a stay, the missing response letter and the prompt application justified an extension, albeit not without hesitation.

First-instance decision on an application to set aside an order made without a hearing. No prior appellate decision is stated in the judgment.