Jerrard v Blyth & Ors

Issuing proceedings against a party without serving the claim form within the prescribed period does not automatically make the claim lapse. The claim remains in limbo and requires a formal conclusion, usually by notice of discontinuance or an order setting it aside. A person joined as a party is entitled to prompt notification, clarity and certainty. Solicitors should not join parties merely as a protective measure or leave them exposed to unnecessary uncertainty and costs. Conduct which takes a case out of the norm may justify costs on the indemnity basis.

The claimant brought libel proceedings concerning an allegedly defamatory website posting. The third defendant was named in the claim but was never served. He later applied under CPR 7.7 for service of the claim form or discontinuance, and then applied to set aside the proceedings and obtain indemnity costs.

The court also recorded outstanding applications by the second defendant, including applications under CPR Part 3 and CPR Part 24. This judgment principally gives the reasons for granting the third defendant’s application.

1. The third defendant’s application was granted. The proceedings against him were set aside and he was awarded costs on the indemnity basis, with £15,000 payable on account, subject to suspension if permission to appeal were granted.

2. Applying Aktas v Adepta [2011] QB 894, the court held that issuing proceedings against a party who is not served within the prescribed four-month period does not cause the claim automatically to lapse. It remains in limbo and requires a formal quietus, either by serving a notice of discontinuance or by an order setting the proceedings aside.

3. A claimant and its solicitors must deal professionally with anyone joined as a party. The person should receive prior notification, be served with the proceedings or a notice of discontinuance, and be given clarity and certainty. The court should prevent obfuscation and unnecessary expenditure.

4. The claimant’s failure to clarify the position, despite requests under CPR 7.7, made it reasonable for the third defendant to incur legal costs. The conduct took the case out of the norm, applying the approach in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 879, and therefore warranted indemnity costs.