Ru Tan v Mohamad Yasser Idlbi & Anor

Retrospective validation of defective service is a contextual exercise. Relevant matters include the steps taken to bring the document to the recipient’s attention, actual receipt, the recipient’s understanding that service was intended, the nature of the document and any prejudice caused by validation. Service of an application notice in ongoing litigation differs materially from service of a claim form. Relief from sanctions remains governed by Civil Procedure Rules 1998, rule 3.9 and the three-stage approach in Denton v White. An appellate court should not substitute its own assessment merely because it might have balanced the factors differently.

The claimant appealed from HHJ Luba KC’s decision at trial on 26 April 2023. The judge dismissed the claimant’s application to regularise service of an application for relief from sanctions and refused relief under rule 3.9 after the claimant served a costs budget late and by email.

The claimant argued that the defendants had received the documents, suffered no prejudice and had communicated by email throughout the litigation. The central issues were whether defective service should be retrospectively validated and whether the refusal of relief from sanctions was an appealable error.

1. Retrospective validation. The judge erred in treating the application to regularise service as unsupported by evidence and in applying the wrong approach. An application under CPR rules 6.15 and 6.27 may be made orally or without notice, and the CPR does not prescribe the format of supporting evidence.
2. The relevant considerations included whether reasonable steps were taken to bring the document to the recipient’s attention, whether it was received, whether the recipient believed formal service was intended, the nature of the document, and any prejudice caused by validation. The application notice was received months before trial, the defendants had long used email, and no prejudice was shown. The notice was not a claim form. The defective service was therefore declared good service.
3. Retrospective validation differs from prospective authorisation of an alternative method of service. The former focuses on knowledge, justice, proportionality, efficiency, conduct and prejudice.
4. Relief from sanctions. The late costs budget was a serious and significant breach. The claimant’s solicitors had no good reason for it. At the third stage under Denton v White, the court had to consider all the circumstances, including efficient and proportionate litigation and compliance with rules and orders. The breach undermined the costs-budgeting exercise.
5. The defendants’ serious procedural misconduct and absence of prejudice were relevant, but the trial judge had considered conduct and prejudice. The reference to the likely difficulty of recovering disallowed costs from the claimant was also relevant. The refusal of relief was within the generous ambit of discretion.
6. The appeal was dismissed, save that the defective service of the application notice was retrospectively validated.

• High Court (King’s Bench Division): appeal from HHJ Luba KC’s decision at trial on 26 April 2023. The appeal was dismissed, save that defective service of the application notice was retrospectively validated.