Dunbar Assets Plc v BCP Premier Ltd

Service of a claim form by an unauthorised method may be validated under CPR 6.15 only where there is a good reason and the court considers it appropriate to exercise its discretion. The jurisdiction should be approached rigorously. The absence of prejudice to the defendant is ordinarily insufficient, particularly where validation could remove a limitation defence. The claimant must explain candidly why proper service was not effected, so that the court has material on which to exercise its discretion. The purposes of service include notifying the defendant of formal proceedings, enabling participation, allowing court control, and providing certainty about procedural time limits and limitation issues.

The claimant appealed against an order permitting service of a claim form by email under CPR 6.15. The parties had agreed that the claim form would be served by 4 pm on 3 April 2014, but the claimant emailed a copy and sent a monochrome copy by DX. Email service was not authorised, and the defendant had agreed only to accept service, not service by email.

The Deputy Master found that the defendant knew the claim form’s contents and that there was no prejudice, and treated the defective step as good service. The claimant gave no explanation for failing to serve the claim form by an authorised method, despite having time to do so. The central issues were whether there was a good reason to validate the attempted service and, if so, whether the discretion under CPR 6.15 should be exercised.

1. The appeal was allowed. The order validating service by email under CPR 6.15 was set aside. The two appeals concerned materially identical circumstances.
2. CPR 6.15 requires two separate inquiries: first, whether there is a good reason to authorise service by an alternative method; and secondly, whether the court should exercise its discretion in favour of the order. The power should not be exercised readily. A sufficiently compelling case is required, although exceptional circumstances are not a prerequisite.
3. The approach in Brown v Innovatorone plc [2009] EWHC 1376 was approved and treated as consistent with Power v Meloy Whittle Robinson [2014] EWCA Civ 898. The court must examine carefully why the application became necessary. A claimant seeking the court’s indulgence must provide a candid explanation for the failure to comply with the service rules. The claimant’s unexplained failure to serve properly, despite agreeing to do so and having ample opportunity, was a substantial reason against relief.
4. Following Abela v Baadarani [2013] UKSC 44, the question whether there is a good reason is fact-sensitive. The principal purpose of service is communication of the claim form’s contents, but service also starts the formal litigation process, enables participation and court control, and gives certainty concerning procedural deadlines and limitation defences. Knowledge that a claim form has been issued is not equivalent to certainty that, and when, it has been served.
5. The possibility that validation would deprive the defendant of a limitation defence was relevant prejudice. The absence of prejudice was not enough to justify relief. The suggested reasons of certainty, convenience, avoidance of a possible limitation defence and retrospective regularisation of a consent order were insufficient. The circumstances fell far short of the required standard, and the discretion would in any event have been refused.

1. High Court (Chancery Division) — On appeal from the order of Deputy Master Mark dated 2 May 2014, the appeal was allowed and the order under CPR 6.15 was set aside.
2. Deputy Master — Permitted the claim form sent by email on 3 April 2014 to constitute good service under CPR 6.15.