The CPR contain a number of provisions concerning when a document is deemed to have been served. One of these, introduced by amendment in 2011, is CPR 6.14. This provides that:
“A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).”
The importance of such deemed service provisions was explained by the Court of Appeal in two leading decisions, Godwin v Swindon Borough Council and Anderton v Clwyd County Council (No. 2). The policy choice made in those decisions was that deemed service dates should mark the end of the court’s inquiry as to when service is taken to have been effected, even if it may be open to a party to seek relief based on the actual course of service.
In this context, the Court of Appeal’s decision in Kennedy v National Trust for Scotland marks a potentially significant change in approach. The reason for that lies in the Court of Appeal deciding to brush CPR 6.14 to one side when resolving the question of whether a claim form had been served in time.
The background to the case was a knotty jurisdictional dispute that gave rise to “appeals… concerned with a number of complex issues in relation to the jurisdiction of the courts of England and Wales in relation to claims in tort, including defamation, brought against a defendant domiciled in Scotland” (paragraph 1). The main thrust of the Court of Appeal’s decision was that Sir David Eady had been entitled to apply a forum non conveniens test and rule that a claim brought in England should be stayed because Scotland was the appropriate forum for it. However, a separate limb of the appeal concerned whether a claim form had either been validly served or had expired owing to late service.
On that issue, the National Trust for Scotland’s position was clear, if not attractive. Its solicitors having refused to accept service, the claimant’s solicitors had sent the claim form by post. They had sent it on the penultimate date of the claim form’s validity. It followed from CPR 6.14, so the National Trust argued, that the claim form was deemed to have been served two days after sending, even if it had, as a matter of fact, arrived earlier. As such, its validity had expired by the time it was deemed to have been served.
These submissions drew support from Andrew Baker J’s decision in Brightside v RSM UK Audit. Andrew Baker J had held, albeit obiter, that CPR 6.14 fixed the date for service in respect of claims served in Scotland and Northern Ireland.
The Court of Appeal rejected those submissions and disapproved Andrew Baker J’s decision. They instead preferred the analysis of Flaux J (as he then was) in T&L Sugars Ltd v Tate &Lyle Industries Ltd. Flaux J had drawn out the distinction between CPR 6.14 and CPR 7.5 (2), which provides that:
(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.
According to Flaux J’s analysis, it was CPR 7.5 that determined whether a claim form had expired before service: as long as the step it mandated had been taken, then the claim form would not have expired invalid. Conversely, “CPR 6.14 is looking at when service will be deemed to have taken place for the purpose of other steps in the proceedings thereafter, beginning with the filing of an acknowledgement of service”.
It will, by now, be apparent that the Court of Appeal had to choose between either giving effect to the apparently clear wording of the deeming provision in CPR 6.14 or taking the view that CPR 7.5 should prevail. Their decision was to favour the latter. That may raise eyebrows, both given the previous approach to deeming provisions and given the court’s treatment of CPR 6.14 itself. Thus, it is highly unusual to find a Court of Appeal reason that:
It is the latter point that may be the most significant. The court chose to approve and apply the dicta concerning deeming provisions of Nourse J in Inland Revenue Commissioners v Metrolands (Property Finance) Ltd at 646. These lead to the position that a deeming provision should not be applied if its application leads “to an unjust, anomalous or absurd result.” Whatever that approach has to be said for it in the context of tax law or statutory interpretation generally, it was an approach that the Court of Appeal did not follow with respect to civil procedural rules in Godwin and Anderton. The policy reasons for that, essentially the promotion of certainty, were memorably set out by Lords Justices May and Mummery in those cases.
Kennedy marks a clear step away from that approach.
It remains to be seen whether this decision marks simply an outlying decision concerning a provision prima facie decisive only where an English claim form is served in Scotland or Northern Ireland close to the limit of its expiry, or whether it marks a wider change in approach.
There can be no doubt that the application of the Metrolands approach to CPR deeming provisions has the potential to support wider-ranging submissions than were seen in Kennedy. If a wider change is seen, a retreat from Godwin and Anderton would not be as surprising as it might first seem. Those decisions reflected judicial optimism of the Woolf era that a new approach to civil procedure would sweep away previously arcane procedural disputes.
Subsequent experience may have persuaded some Lords Justices that the rigid application of rules has not promoted the certainty expected, and that the continuing waves of amendments to the rules will continue to throw up anomalies best resolved pragmatically. Yet even were that the case, the impacts in practice should not be gainsaid. The Court of Appeal’s decision to ignore an apparently clear provision such as CPR 6.14 may leave practitioners, faced with decisions on whether rules have been complied with, with lingering doubt about whether those rules will be taken on their terms.
Written by James Bickford Smith, barrister at Littleton Chambers.