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Brightside Group Ltd v (1) RSM UK Audit LLP (Formerly Baker Tilly UK Audit LLP)

This case illustrates another pitfall when serving at the eleventh hour. With limitation looming, C issued proceedings but did not serve. D served notice under CPR 7.7.

This provides:

  1. Where a claim form has been issued against a defendant, but has not yet been served on him, the defendant may serve a notice on the claimant requiring him to serve the claim form or discontinue the claim within a period specified in the notice.
  2. The period specified in a notice served under paragraph (1) must be at least 14 days after service of the notice.
  3. If the claimant fails to comply with the notice, the court may, on the application of the defendant–
    1. dismiss the claim;
    2. or
    3. make any other order it thinks just.

D gave 14 days’ notice, expiring on 10 June 2016. On the afternoon of 10 June C undertook personal service at the nominated solicitors’ offices. C thought it had done enough. D applied for the claim to be dismissed on the basis that the claim form was deemed served on the second business day thereafter (in this case 14 June) by virtue of CPR 6.14.

Mr Justice Andrew Baker agreed with D on the service issue. The normal rules of service under CPR 7.5 now define the “step required” to serve e.g. the act of posting or personal delivery, and provided that step is taken in time then the fact that the claim form is deemed served 2 business days later does not matter. But CPR 7.7 does not provide a “step required”. Instead it provides a period within which the claim form has to be served. So the deeming provisions are relevant and the claim form was served out of time.

The story has a happier ending for C as Baker J declined to strike out the claim. He noted that the solicitors had believed in good faith that they were complying with the CPR. There was also no prejudice to the defendant who had actually received the claim form on 11 June.

Future Judges may not all exercise their discretion in the same way. Now there is a reported case on the point it may be more difficult to run the argument that actions had been taken “in good faith” at least without admitting negligence.

Napier Miles / 22nd Mar 2017


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