The Civil Procedure (Amendment) Rules 2008, which came into force on 1 October 2008, brought about a number of significant amendments to the CPR, including changes to the rules governing the service of the claim form on defendants. The interpretation of some of these rules, in particular in relation to service of the claim form by fax, was considered in detail by Mr Justice Andrew Smith in Andrew Brown v InnovatorOne Plc [2009] EWHC 1376 (Comm).

Although only a High Court decision, this case will make essential reading for civil and commercial dispute resolution lawyers as it illustrates the potential difficulties practitioners face when trying to serve the claim form on a defendant under the amended rules. Further, the decision of the learned judge in this case also provides helpful guidance in interpreting the amended rules and the application of these rules in practice.

It is prudent, for the purposes of this article, to review some of the main provisions at the heart of InnovatorOne. Section II of part 6.3(1)(d) of the CPR allows for the claim form to be served by fax (or by other means of electronic communication). This can only be done if, according to practice direction A, which accompanies part 6, the defendant or his solicitor has confirmed in writing that he or his solicitor is willing to accept service by fax, and if a fax number has been provided. A fax number which is set out on the writing paper of the defendant’s solicitor can be taken to be sufficient indication that the defendant is willing to accept service of the claim form by fax (practice direction A, paragraph 4.1(2)). Finally, if the defendant’s solicitor has notified the claimant in writing that he is instructed by his client to accept service of the claim form, then the claimant must serve the defendant’s solicitor (part 6.7(b)).

In InnovatorOne, the claimants’ solicitors issued and served proceedings against a number of defendants. The claimants’ solicitors intended to serve the claim form upon two additional defendants, D1 and D2. However, rather than serve the claim form upon D1 and D2, the claimants’ solicitors entered into pre-action correspondence with D1 and D2’s solicitors. During the pre-action stage, D1 and D2’s solicitors confirmed, on headed paper which contained their respective fax numbers, that they acted for their clients but did not, at any point, state that they had been instructed to accept proceedings on behalf of their clients.

Approximately two hours before the claim forms were due to expire, the claimants’ solicitors faxed the claim forms to D1 and D2’s solicitors. At the time the claim forms were faxed, D2’s solicitors had still not been instructed to accept service of proceedings, but D1’s solicitors had. However, throughout their dealings with D1 and D2’s solicitors and prior to the claim forms being faxed, the claimants’ solicitor had failed to ascertain from both D1 and D2’s solicitors whether they had been instructed to accept proceedings. The claimants’ solicitors now made an application to the High Court for a declaration that the claim forms had been validly served by fax under section II of part 6 or, alternatively, service had been achieved by an alternative method under part 6.15.

The claimants argued that, in the case of a solicitor who is acting for a defendant, a fax number set out on the solicitor’s formal headed paper was to be taken as an indication that he is willing to accept service by fax. Accordingly, the claimants argued that, where a solicitor has received correspondence from a solicitor acting for a defendant on headed paper setting out the defendant’s solicitor’s fax number, a claim form may be validly served by transmitting the claim form to the fax. The claimants contended that this interpretation gave part 6 and its practice direction their true and natural meaning.

Smith J, dismissing the claimants’ application, held that the claimants’ interpretation of rule 6 would have surprising consequences as it would mean, in the case of service on a solicitor by fax, that it did not matter whether the defendant had in fact instructed his solicitor to accept service of proceedings. This would allow claimants simply to serve a defendant’s solicitor without knowing whether the solicitor is the correct person to serve under the rules. He went on to note that rule 6.7(b) depended not upon the solicitor in fact being instructed by the defendant to accept service, but upon the solicitor notifying the claimant that he has been so instructed. The claimants’ interpretation of the rules would also mean that, due to the mere fact that the defendant has corresponded with the claimant’s solicitor on headed paper that may contain a fax number, the defendant’s solicitor could still be served even if the defendant’s solicitor has confirmed that he has not been instructed to accept service.

Smith J, agreeing with the defendants’ submissions, ruled that, if the claimant has been told that the defendant’s solicitor may be served, then service upon him may be by fax if the fax number appears on the defendant’s solicitors headed paper. Following the Court of Appeal case of Maggs v Marshall [2006] EWCA 20, which concerned the interpretation of the old rules on service, Smith J confirmed that the words ‘acting for’ the party to be served, as detailed in practice direction A, refers to when a solicitor has been instructed to accept service of the proceedings and the claimant has been made aware of this. Further, the claimants’ reliance on the words in the Commercial Court Guide that ‘it is desirable’ to obtain confirmation that the defendant’s solicitor has instructions to accept service was, according to Smith J, irrelevant, as the guide had no formal status (The Secretary of State for Communities and Local Government v Bovale Ltd [2009] EWCA Civ 171).

Turning to the claimants’ application under part 6.15, Smith J disagreed with the defendants’ interpretation of part 6.15, namely that the court should only allow service by an alternative method in exceptional circumstances. The test is that there must be a ‘good reason’ for making an order under part 6.15. However, the learned judge went on to dismiss the claimants’ application and the claimants’ argument that consideration should not be paid to authorities that have been decided under the old rules when interpreting the amended rules. The judge held that the court should ‘adopt a rigorous approach to an application by a claimant for indulgence’. In support of this conclusion he cited the Court of Appeal case of Kuenyehia v International Hospitals Group Ltd [2006] EWCA Civ 21, in which Lord Justice Neuberger stated: ‘The time limits in the CPR, especially with regard to service of the claim form where limitation periods may have expired, are to be strictly observed, and extensions and other dispensations are to be sparingly accorded, especially when applied for after time has expired.’

There are a number of significant lessons that can be learned from InnovatorOne. First, and most obvious, it is of paramount importance that the claimant’s solicitor should obtain clear written confirmation from the defendant’s solicitor as to whether the defendant’s solicitor has instructions to accept service of proceedings on behalf of the defendant. The claimant’s solicitor must ensure that this step is taken, even if he has been in correspondence with the defendant’s solicitors at the pre-action stage of the matter. If the defendant’s solicitor confirms that he is not instructed to accept service of proceedings, the claimant’s solicitor must serve proceedings directly on the defendant.

Second, the claimant’s solicitor will not be able to serve proceedings by fax despite the fax number appearing on the defendant’s solicitors headed paper if the defendant’s solicitor has not confirmed that he is instructed to accept service of proceedings.

Third, the courts will, as did Smith J, look back at case law under the old rules to interpret the new amendments, and practitioners should bear this in mind when seeking clarification and guidance as to the meaning of the rules.

Finally, claimants who have failed to comply with the appropriate provisions of part 6 when serving the claim form will have an extremely difficult task convincing a court that the claim form has been served by an alternative method.

Masood Ahmed, Senior law lecturer, Birmingham City University