Kaki v National Private Air Transport Company & Anor

Under CPR 6.15, the court asks whether, in all the circumstances, there is a good reason to authorise alternative service or retrospectively validate steps which brought the claim form to the defendant’s attention. Exceptional circumstances are unnecessary, and there is no separate discretion after good reason has been established.

An application may be made after the claim form has expired. Its timing, the reason for the failure to serve within the period of validity, and the parties’ conduct remain relevant factors, but expiry does not impose a more rigorous legal test. A retrospective validation order determines the deemed date of service and operates for all subsequent procedural events.

The claimant sought repayment of the price paid for an interest in an aircraft, or equivalent damages. Although the claim form was brought to the defendant’s attention, later attempts to serve it by authorised alternative methods were completed after its extended period of validity had expired. Summary judgment was subsequently entered against the defendant.

A Deputy High Court Judge refused a retrospective extension under CPR 7.6(3), but declared under CPR 6.15(2) that earlier steps taken in September 2012 constituted good service. The defendant appealed, contending that applications made after expiry required greater rigour, that failures by the claimant’s lawyers precluded a good reason, and that validation improperly regularised the summary judgment.

1. Appeal dismissed. CPR 6.15(1) and (2) impose one controlling requirement: whether there is a good reason to authorise the alternative method or validate the steps already taken. The rule contains no exceptional-circumstances requirement and creates no separate discretion permitting the court to refuse relief after finding a good reason.

2. The claimant may apply before or after the period during which the claim form is valid for service. CPR 6.15 does not prescribe a time for the application. Expiry is therefore a relevant circumstance, rather than a basis for applying a different or more rigorous legal test.

3. The court must examine all relevant circumstances rigorously without converting possible considerations into a checklist. The focus will ordinarily include why service could not be effected within the claim form’s validity, the conduct of the claimant and its advisers, the conduct of the defendant and its advisers, and the timing of the application. The Supreme Court’s approach in Abela v Baadarani was applied. The two-stage approach suggested in Dunbar Assets Plc v PCP Premier Ltd was not followed.

4. The Deputy Judge had considered the claimant’s failures when refusing relief under CPR 7.6(3). He was nevertheless entitled to find that the claimant’s significant and successful efforts to bring the claim form to the defendant’s attention supplied a good reason under CPR 6.15(2). He had also considered that the application was made after expiry. His evaluative conclusion disclosed no error of principle and was right.

5. A validation order has retrospective effect for every subsequent procedural event, not merely for identifying the deemed date of service. The claim form was therefore properly treated as served on 17 September 2012, and the later summary judgment was regular. A different deemed date may be selected in an appropriate case, but none was sought here.

Sharp LJ and Bean LJ agreed with Aikens LJ.

1. Court of Appeal (Civil Division): The appeal was dismissed. The declaration validating the September 2012 steps as good service under CPR 6.15(2) was upheld: [2015] EWCA Civ 731.

2. High Court, Commercial Court: Mr Christopher Butcher QC, sitting as a Deputy High Court Judge, refused a retrospective extension under CPR 7.6(3) but declared that the steps taken to bring the claim form to the defendant’s attention amounted to good service under CPR 6.15(2). No citation is stated in the judgment.