Power v Meloy Whittle Robinson Solicitors

The court held that when considering an application under CPR 6.15(2) the proper question is whether, in all the circumstances, there is a good reason to treat steps already taken to bring the claim form to the defendant's attention as good service; mere knowledge of the claim by the defendant is an important but not decisive factor and the focus is why the claim form could not have been served by permitted methods within its period of validity.

The appellant sued his former solicitors for negligent failure to pursue a "services" component of a HAVS compensation claim. Proceedings were issued shortly before expiry of limitation but the county court erroneously sent the issued claim form to the defendant (and their solicitors) rather than returning sealed papers to the claimant's solicitors for service. The claimant only discovered the error months later and sought relief under CPR 6.15(2) (that steps already taken constituted good service) and alternatively extensions or dispensation under CPR 7.6 and CPR 6.16. HHJ Gosnell refused the relief and struck out; the Court of Appeal (Tomlinson LJ giving the lead judgment, Briggs LJ and Vos LJ concurring) allowed the appeal, applied guidance from Abela v Baadarani and ordered that the claim form be treated as served on 18 September 2012. The central issue was whether there was a "good reason" under CPR 6.15(2) to validate the steps already taken.

Disposition: The appeal was allowed and the Court of Appeal ordered that the Claim Form be treated as served on 18 September 2012 (para 41).

(1) The proper approach to an application under CPR 6.15(2) is to ask whether, in all the circumstances of the particular case, there is a "good reason" to treat the steps already taken to bring the claim form to the defendant's attention as constituting good service. The inquiry should focus on why the claim form could not or could not reasonably have been served by permitted methods within the period of its validity (paras 34–41).

(2) The mere fact that the defendant learned of the contents of the claim form cannot, without more, automatically constitute a good reason under rule 6.15(2), although it is a critical factor to be weighed in the overall assessment (paras 35–38).

(3) Guidance in Abela v Baadarani (Supreme Court) explains that the court should not engage in over-analysing previous fact-specific authorities but should concentrate on the particular circumstances and the reasons why ordinary service could not have been achieved; matters before the issue of the claim form are generally not the relevant focus (paras 34–41).

(4) In applying the test to the present facts the court found: (a) there were significant procedural errors by the court (sending issued papers direct to the defendant and failing to notify the claimant as required by CPR 6.17), (b) the defendant and its solicitors were fully appraised of the nature and content of the claim and the claimant's intention to pursue it, and (c) the correspondence between the parties objectively tended to lull the claimant's solicitors into a false sense of security that service had been properly handled (paras 14–19, 35–39).

(5) On balance these features provided an "overwhelmingly good reason" to exercise the court's discretion under CPR 6.15(2) and to hold that the steps taken constituted good service. It was unnecessary to decide issues relating to the acknowledgement of service or alternative grounds (para 40).

Order: Allow appeal; order that the Claim Form was served on the Defendants on 18 September 2012 and invite parties to agree a form of order consistent with CPR 6.15(4) to enable the action to proceed to trial (para 41).

• Leeds County Court: HHJ Gosnell — application to set aside DDJ Pickup's order refused / proceedings struck out at first instance (as summarised in this judgment).
• Court of Appeal (Civil Division): [2014] EWCA Civ 898 — appeal allowed; order that the Claim Form be treated as served on 18 September 2012 and matter remitted to proceed (this judgment).