Ideal Shopping Direct Limited & Ors. v Mastercard Incorporated & Ors.

A claim form served under the Civil Procedure Rules 1998 must be sealed by the court. Under electronic working, a claim form is not ready for service until it has been accepted and electronically sealed. The retrospective issue date provided by PD51O does not permit service of an unsealed form.

CPR 3.10 is a general procedural power. It cannot validate defective service of originating process where that would bypass the specific requirements in CPR 6.15, 6.16 or 7.6. A claimant who files at the last moment and thereby loses a limitation defence has limited claim to discretionary relief.

An undertaking not to bring proceedings to an end and issue substantially equivalent fresh proceedings is not engaged by an inadvertent failure of service where the claimant sought to preserve the proceedings. Its reference to advantage under a Directive “or otherwise” concerns an advantage obtained by another means.

The appellants brought competition-law damages claims against Mastercard and Visa. By agreement, the time for service of the claim forms was extended until 17 July 2020. On that day the appellants emailed amended but unsealed claim forms to the respondents’ solicitors. The court accepted and sealed most forms only after the deadline.

Morgan J held that no claim form had been served in time and refused relief under CPR 6.15, 6.16 and 3.10: [2020] EWHC 3399 & 3464 (Ch). He also held that an undertaking given to Visa did not prevent fresh proceedings in the circumstances.

The appellants appealed the rulings on sealing and CPR 3.10. Visa cross-appealed on the construction of the undertaking.

1. Appeal and cross-appeal dismissed. The unsealed amended forms emailed on 17 July 2020 were not claim forms capable of valid service. CPR 2.6 and 7.5 require service of a sealed claim form. That general rule was confirmed by McManus v Sharif and Hills Contractors and Construction Ltd v Struth.

2. PD51O did not displace that requirement. Paragraph 1.2 makes electronic working subject to the CPR unless the practice direction expressly provides otherwise. Paragraphs 7.1 and 8.1 instead confirm that acceptance and electronic sealing must occur before the court returns a form as ready for service. The deeming provisions on the date of issue do not authorise service before acceptance. The delay caused no lacuna: the appellants could have filed earlier, sought an extension, served the original sealed forms, sought expedited acceptance, or applied under CPR 7.6 before expiry.

3. CPR 3.10 could not cure the defective service. The relief sought was, in substance, retrospective validation of service or dispensation from further service. Those matters are governed by CPR 6.15 and 6.16, and would also circumvent the restrictive extension regime in CPR 7.6(3). Following Vinos v Marks & Spencer plc [2001] 3 All ER 784, the general power cannot bypass that specific procedural code. The contrary obiter discussion in Phillips v Symes (No. 3) [2008] UKHL 1 did not displace binding Court of Appeal authority.

4. Even if CPR 3.10 had been available, relief would have been refused. Knowledge of the claims was necessary but insufficient. The appellants’ avoidable mistake and late filing, together with the respondents’ accrued limitation defences, outweighed the prejudice to the appellants from partial time-barring.

5. The Visa undertaking concerned a deliberate act of bringing the proceedings to an end. The appellants intended to serve and preserve their claims, and sought to validate service when it was challenged. Fresh proceedings would therefore not breach the undertaking. The phrase “or otherwise” concerned seeking a perceived advantage by a means other than the Directive, rather than barring fresh claims for every reason.

• Court of Appeal (Civil Division): Appeal and Visa’s cross-appeal dismissed: [2022] EWCA Civ 14.
• High Court, Chancery Division: Morgan J held that unsealed amended forms had not been validly served and refused relief under CPR 6.15, 6.16 and 3.10. He held that Visa’s undertaking did not prohibit fresh proceedings: [2020] EWHC 3399 & 3464 (Ch).