​Constitutional change and the Civil Procedure Rules

One consequence of the lack of a codified British constitution is that substantial constitutional changes can occur without anyone noticing at the time. The Civil Procedure Rules in 1998 abolished the ancient rule that proper service of proceedings meant what it said, that a defendant should actually receive a claim form, but the dramatic change was not quickly apparent.

Good service subsequently could (and can) be effected on a defendant’s last known residence [CPR 6.9], even though the claimant knows he has moved and will not receive the claim form. But the White Book in 2002 noted that the question as to whether service on a defendant who had not received it was good service had yet to be tested, and a cavalcade of cases in the Court of Appeal on service followed before the point was clear. By the time of Akram v Adam [2004] EWCA Civ 1601, the new procedure was approved, and indeed found compliant with article 6 of the European Convention on Human Rights, provided there was an opportunity for the defendant to come to the court subsequently.

So a judgment may be entered in the entire ignorance of a defendant, whose only recourse at a later date is to be found in CPR 13.3 where a court ‘may [emphasis added] set aside’ if the defendant has a real prospect of successfully defending, or it appears to the court that there is some other good reason why the judgment should be set aside.

What Lord Denning had called a ‘fundamental principle of our law’, that ‘no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them’ (R v London County Quarter Sessions Appeals Committee Ex p. Rossi, [1956] 1 Q.B. 682) disappeared as a result of the statutory instrument implementing the CPR, and subsequent judicial interpretation. Thus the burden of resisting a claim of which originally he may know nothing was shifted firmly on to the defendant.

In a regime of easy credit and evasive debtors, this was arguably a valid policy decision but it is curious to say the least that so dramatic change occurred with almost no public political input. It must seem more than casual to continental or North American lawyers where process serving is generally mandatory and undertaken only by  professionals or at the least evidenced by receipted post.

For the legal system of England and Wales, one consequence has been a great deal of wasteful satellite litigation to establish the current law. But another may be to have caused substantial unfairness in view of the burden put onto a defendant in a CPR 13.3 application.

I recently observed such unfairness myself, in a case in which my client, then a litigant in person, learning more than a year later of a judgment entered against her, unsuccessfully appeared before a district judge without even a sight of the claim form or other documents of the claimant – none having then reached her. The court found, despite her denials, that she had probably been served through a postal redirection service and in any event had come to the court too late. She fared no better before the circuit judge, the sole appeal possible in a county court matter (administration of Justice Act 1999, section 54(4).

There had arguably been a number of serious procedural defects at both levels.  Although it is exceptionally difficult to obtain judicial review when no further appeal is possible, as set out in R (Sivasubramanian) v Wandsworth County Court [2002] EWCA Civ 1738], leave was given by the Administrative Court in my more recent case which was seen by it on the papers as having a “realistic prospect of success”. Eventually, however, a circuit judge sitting as a deputy High Court judge, refused the application.

As Lady Hale pointed out in R (Cart) v The Upper Tribunal [2011] UKSC 28 ‘…a certain level of error is acceptable in a legal system which has so many demands upon its limited resources’. She noted that ‘the district judge and the circuit judge may both have gone wrong in law. They may work so closely and regularly together that the latter is unlikely to detect the possibility of error in the former. But at least in the county courts such errors are in due course likely to be detected elsewhere and put right for the future’.

A future remedy is no consolation for a current litigant, however, and it seems the present indulgent law on service will continue to cause both expenditure of court time and vexation to litigants.

Judicial review is an expensive sledgehammer to crack a nut, but in face of the rigour of CPR 13(3) it may be the only recourse. It would surely be far more sensible to amend CPR 6(9) to require postal service to be proved by recorded delivery, resurrecting the principle rightly emphasised by Lord Denning and avoiding a multitude of problems, human and legal.

 Roger Sceats is a solicitor