Raymond Clewer v Higgs & Sons (A Firm)

An unless order requiring payment of a court fee may be complied with by lodging, before the deadline, a completed application for fee remission which is subsequently approved. The later approval records an entitlement existing at the deadline.

Service of a claim form ordinarily requires service of a sealed claim form. Serving an unsealed amended claim form does not satisfy that requirement, even where the court later seals it with an earlier issue date. A claimant facing expiry must use the procedural mechanisms available for alternative service, dispensing with service, or extending time.

The appellant appealed from Deputy Master Marsh’s order of 16 June 2021, which declared that his negligence claim had been automatically struck out for failure to comply with an unless order made by Deputy Master Hansen on 23 October 2020.

The order required service of the claim form and particulars of claim, and payment of an additional £7,500 court fee, by 4pm on 1 November 2020. Before that deadline the appellant emailed an unsealed amended claim form and a fee-remission application. The court later confirmed the fee remission and supplied a sealed amended claim form bearing an issue date of 31 October 2020.

The appeal concerned whether those steps constituted payment and service.

1. Disposition. The appeal was allowed on Ground 7 but dismissed on Ground 6. The overall appeal therefore failed and Deputy Master Marsh’s order stood, although for partly different reasons.
2. Fee remission. The unless order’s requirement to pay the additional fee was wide enough to include a successful application for fee exemption. The appellant’s completed Form EX160 was received before the deadline. Later approval merely confirmed the state of affairs existing when the form was received. The additional fee was therefore treated as paid for the purposes of the order.
3. Service. Under the reasoning in Ideal Shopping Direct Ltd v Mastercard Inc, a claim form must ordinarily be sealed before valid service. That requirement also applies where the claimant seeks to amend without permission under CPR rule 17.1. Serving an unsealed amended claim form cannot avoid the requirements governing commencement and service.
4. Issue and service are distinct. The later sealing of the amended claim form, with an issue date of 31 October 2020, did not retrospectively establish service by 1 November. The document was not available to the appellant for service until, at the earliest, 2 November.
5. A claimant facing an imminent service deadline may seek alternative service or dispensing with service under CPR rules 6.15 or 6.16, or an extension under CPR rule 7.6. None of those procedural routes was pursued. The unless order gave the claimants a final opportunity to comply, and that opportunity was not taken.

• Chancery Appeals, High Court: Appeal allowed on Ground 7 and dismissed on Ground 6. The order of Deputy Master Marsh stood: [2023] EWHC 1556 (Ch).
• Deputy Master Marsh: Declared that the claim had been automatically struck out for non-compliance with the unless order dated 23 October 2020.