The Good Law Project (R on the application of) v The Secretary of State for Health and Social Care

For retrospective validation of defective service under CPR 6.15, the court must decide whether there is good reason in all the circumstances. A defendant’s timely knowledge of the claim is important but does not alone justify validation. The court may give substantial weight to a claimant’s failure to take reasonable steps to serve correctly and to the defendant’s loss of an accrued limitation defence.

CPR 7.6 does not directly govern service of a judicial-review claim form under CPR 54.7. However, an application under CPR 3.1(2)(a) should ordinarily apply the same strict principles. Time should not be extended unless the claimant took all reasonable steps to comply with CPR 54.7 but was unable to do so.

The claimant filed judicial-review proceedings challenging the procurement of a PPE contract. It sent an unsealed claim form to the Government Legal Department’s designated address before issue. It later sent the sealed form to the responsible case officer, but not to the designated address, within the seven-day period for service under CPR 54.7.

O’Farrell J refused retrospective validation under CPR 6.15 and an extension of time under CPR 3.1(2)(a), and set aside the claim form for want of jurisdiction: [2021] EWHC 1782 (TCC). The claimant appealed, contending that the defect was technical and caused no substantive prejudice.

The central issues were the proper exercise of the CPR 6.15 discretion and whether CPR 7.6, or its principles, governed an extension of time for service of a judicial-review claim form.

1. Appeal dismissed by a majority. Carr LJ, with whom Underhill LJ agreed on the decisive CPR 6.15 issue, held that the judge’s refusal retrospectively to validate service was within the generous ambit of her discretion. Phillips LJ dissented on that issue.

2. Under CPR 6.15, the question is whether there is good reason in all the circumstances to treat steps already taken as good service. The relevant considerations identified in Barton v Wright Hassall LLP [2018] UKSC 12 include reasonable steps to comply with the rules, the defendant’s knowledge of the claim, and prejudice. Knowledge of the claim form is critical but insufficient by itself. Loss of an accrued limitation defence is relevant prejudice, even though CPR 6.15(2) exists to permit retrospective validation after a limitation period has expired.

3. The claimant’s solicitors had been plainly told to serve new proceedings at a specified email address. They did not send the sealed claim form there in time and gave no adequate explanation for their mistaken approach. There were no obstacles to compliant service. The judge was entitled to regard the error as serious carelessness and to give substantial weight to the resulting limitation defence. The public-interest character of a claim did not require more lenient treatment.

4. CPR 7.6 could not directly apply because its language concerns only compliance with CPR 7.5, not the seven-day period in CPR 54.7. Nevertheless, the specific and stringent requirements governing retrospective extensions for service of a Part 7 or Part 8 claim form should be applied by analogy under CPR 3.1(2)(a) to a judicial-review claim. The claimant had not taken all reasonable steps to serve in time, so no extension was justified.

5. Valid service of a claim form founds the court’s jurisdiction over the defendant. A claimant who fails, without good reason, to take reasonable steps to effect valid service before a relevant limitation period expires risks losing the claim.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the refusal of retrospective validation under CPR 6.15 and held that the refusal of an extension under CPR 3.1(2)(a) was not wrong: [2022] EWCA Civ 355.
• Technology and Construction Court: O’Farrell J refused relief under CPR 3.10, CPR 6.15 and CPR 3.1(2)(a), and set aside the claim form for want of jurisdiction because it had not been validly served: [2021] EWHC 1782 (TCC).