Mark Keilaus & Anor v Nicola Houghton & Anor

Retrospective validation of defective claim-form service requires a good reason in all the circumstances. Knowledge of the claim form is important but is not, by itself, sufficient. The court must consider the claimant’s steps to comply with the service rules, the defendant’s knowledge before expiry, and any prejudice caused by validation.

For an extension of time after expiry, the claimant must show that all reasonable steps were taken, that compliance was nevertheless impossible, and that the application was made promptly. A defendant who has not obstructed service has no duty to assist or warn that service was invalid. An avoidable failure to record that solicitors were authorised to accept service prevents relief under either route.

The claimants brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The claim form was issued protectively before the statutory limitation period expired, but it was served personally on the defendants and by email on their solicitors after the four-month validity period had expired.

The defendants applied under CPR Part 11 to challenge jurisdiction. The claimants applied for relief under CPR 3.10, an extension of time under CPR 7.6(3), and retrospective permission for alternative service under CPR 6.15. Following Ideal Shopping Direct Ltd v Mastercard Incorporated, CPR 3.10 was not pursued. The central issues were whether there was good reason to validate the defective service and whether all reasonable steps had been taken to serve in time.

1. The claimants’ application was dismissed. The defendants’ application under CPR Part 11 therefore succeeded in consequence, and the claim could not proceed on the basis of the defective service.
2. Service personally on a defendant is invalid where the defendant’s solicitors have confirmed that they are instructed to accept service. In the absence of express agreement, service by email is also invalid.
3. Under CPR 6.15, the relevant question is whether, in all the circumstances, there is good reason retrospectively to authorise the steps taken as good service. The principal considerations are whether reasonable steps were taken to comply with the rules, whether the defendant or solicitor knew the claim-form contents before expiry, and what prejudice validation would cause. None is decisive alone.
4. Under CPR 7.6(3), an extension after expiry requires all reasonable steps to have been taken, inability to comply despite those steps, and prompt application. A potential defendant who has not obstructed service owes no positive duty to assist or warn that service has not been effected.
5. The claimants’ solicitors had obtained confirmation that the defendants’ solicitors were instructed to accept service, but failed to record or highlight it. The resulting oversight was avoidable. The claimants therefore could not establish good reason under CPR 6.15 or the reasonable-steps and inability requirements under CPR 7.6(3).
6. The failure to serve within the prescribed period did not automatically cause the claim form to lapse. It remained in limbo and required a formal quietus, by notice of discontinuance or an order setting aside the claim form.

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