Houda Chehaib v King’s College Hospital NHS Foundation Trust & Ors

General powers to grant relief from sanctions or rectify procedural errors cannot be used to bypass the specific rules governing service and validity of a claim form. Invalid service caused by using email contrary to Practice Direction 6A is a serious and significant breach. Where the claimant has no good reason for the error and valid service would deprive the defendant of an accrued limitation defence, retrospective validation under CPR 6.15(2) will ordinarily be refused. The defendant’s knowledge of the claim and absence of other prejudice are insufficient. Service of originating process is subject to a bright-line regime requiring particular care.

The claimant brought a clinical negligence claim arising from private surgery. Proceedings were issued shortly before expiry of limitation, and the court granted successive extensions for service. On the final day of validity, the claimant’s solicitors emailed the claim form to the second defendant’s solicitors, despite being told that service should be by post. The second defendant disputed jurisdiction and sought a declaration and strike-out.

The claimant sought relief under CPR 3.9, CPR 3.10 and, shortly before the hearing, CPR 6.15(2). The central issue was whether any of those provisions could validate the defective service or otherwise preserve the claim.

1. Applications dismissed. The claimant’s applications under CPR 3.9 and CPR 3.10, and the oral application under CPR 6.15(2), were dismissed. The second defendant’s challenge to the proposition that the proceedings were automatically null and void was also dismissed.
2. CPR 3.9 was not the appropriate route. The authorities consistently treated CPR 7.6(3), CPR 6.15(2) and CPR 6.16 as the specific provisions governing defects in service of a claim form. CPR 3.9 could not be used to circumvent those provisions.
3. Even if CPR 3.9 had applied, the Denton test was not satisfied. Failure to comply with the Practice Direction governing email service of originating process was serious and significant. There was no good reason for the oversight. At the third stage, the need to enforce compliance with the rules and the defendant’s interest in retaining an accrued limitation defence outweighed the claimant’s reliance on prior knowledge, promptness, lack of disruption and the technical nature of the error.
4. CPR 3.10 was a general power and could not override or bypass the specific service code. The claimant’s case was materially indistinguishable from the wrongful email service considered in Barton and Piepenbrock. The cases in which CPR 3.10 had assisted involved materially different errors, such as an incomplete application for an extension or the omission of a sealed version where the defendant suffered no relevant prejudice.
5. CPR 6.15(2) was also unavailable. The claimant had not taken reasonable steps to serve in accordance with the rules, there was no exceptional circumstance or good reason, and the defendant’s prior knowledge of the claim did not by itself justify retrospective validation. The rule could not ordinarily be used to circumvent an accrued limitation defence.
6. The court observed, obiter, that Practice Direction 6A might merit narrow review in light of changed electronic working practices, particularly where parties had conducted pre-action correspondence by email. Those observations did not affect the result, which was governed by the existing rules and binding authority.

First-instance decision. The judgment does not state any prior appellate decision in this litigation.