Capital Alternatives Sales and Marketing Ltd v Nabas & Ors

Service of a claim form is assessed objectively by reference to what was done and said. A document is not left for a defendant merely because it reaches the defendant, or because the defendant understands that proceedings are contemplated. The claimant must take steps which objectively bring the claim form to the defendant by a permitted method.

Retrospective validation under CPR r.6.15 requires good reason, evaluated holistically. Relevant factors include the claimant’s reasonable steps to effect compliant service, the defendant’s knowledge of the claim form and any prejudice, including loss of an accrued limitation defence. Knowledge alone is insufficient. Dispensing with service under CPR r.6.16 requires exceptional circumstances and is a more demanding remedy. CPR rr.3.9 and 3.10 cannot be used to circumvent specific restrictions governing service.

The liquidators of Capital Alternatives Sales and Marketing Ltd and Green Planet Investment Ltd brought a proposed professional negligence claim against Vitoria Nabas, among others. The claim form was left at addresses associated with the other defendants, including the registered office of Nabas International Lawyers LLP, which was also a registered address for Ms Nabas under section 1140 of the Companies Act 2006. The documents were addressed to the other defendants and did not identify Ms Nabas in the address box.

The claimants sought declarations that service was valid, retrospective validation under CPR r.6.15, an order dispensing with service under CPR r.6.16, and relief under CPR rr.3.9 and 3.10. Ms Nabas sought to prevent the claim continuing against her. The central issues were whether the claim form had been left for her, and whether the court should retrospectively validate or dispense with service.

1. Service was invalid. The claimants had not left a claim form for Ms Nabas at Unit 44 or Plough Place. Objectively, the pack left at Unit 44 was for the second defendant, and the packs left at Plough Place were for the third defendant. The later transfer of those packs to Unit 44 by another defendant did not constitute service by or on behalf of the claimants. The claimant’s intention and Ms Nabas’s subjective understanding were irrelevant. The claim form supplied on 7 June expressly for information and not service was not service: [2018] EWHC 3345 (Comm) at [41]-[56].
2. CPR r.6.15 relief was refused. The court applied the holistic “good reason” assessment described in Barton v Wright Hassall LLP [2018] 1 WLR 1119. The claimants had not taken reasonable steps to serve the claim form in accordance with the rules. They had not investigated the registered address, usual residence or other permitted methods of service, despite the apparent ease of serving at Unit 44 under section 1140. Knowledge of the claim form was a critical factor but did not itself justify validation. The possible loss of a limitation defence was prejudice to Ms Nabas and did not amount to a windfall caused by her conduct: [63]-[81].
3. CPR r.6.16 relief was refused. Dispensing with service required exceptional circumstances. The claimants’ delay, failure to attempt compliant service, failure to investigate available methods, and the possible loss of an accrued limitation defence meant that the threshold was not met: [82]-[88].
4. CPR rr.3.9 and 3.10 provided no alternative route. Rule 3.10 could not be used to do what the specific service provisions prohibited, and the court could not use the general powers in rules 3.9 or 3.10 to avoid the limitations of rules 6.15 and 6.16: [89]-[92]. The claimants’ application was dismissed and the claim against Ms Nabas could not continue: [93].

First-instance decision. The judgment records no prior appellate decision in the same litigation.