Service of copy claim forms: two triumphs of substance over form

January 12, 2023

 by Christian Taylor and Sara Sutherland

Proceedings are started when the court issues a claim form at the request of the claimant (CPR 7.2). That claim form then has to be served upon the Defendant(s) by one of the methods stipulated in CPR 6.3.

Imagine the scenario where two originals of the claim form are returned to the office for service by the solicitor upon the Defendant. The claim form is scanned into the system. A printed copy of the Claim Form is then mistakenly served on the Defendant instead of the Claim Form being served.

If the mistake is realised it may be that the error can be corrected within the 4 month period for service. But what if everything has happened last minute and it is only after the 4 month deadline has passed that the mistake comes to light?

This was precisely the problem faced by Jayne Hart in 2014, and by Wendy Evans in 2017. The former had suffered personal injury in a road traffic accident, the latter had suffered injury in a Tesco store. Each set of solicitors had unwittingly served copies of the original claim form as opposed to the claim form itself.

On 24 September 2015 HHJ Graham Wood Q.C. gave judgment in the matter of Jayne Hart v United Utilities. His judgment can be found here. The decision was unreported. The case is referred to in the White Book 2022 at 11.1.9. Following a comprehensive review of the authorities particularly around CPR 3.10, CPR 6.15 and CPR 6.16 HHJ Wood concluded at 75 that:

“It seems to me, therefore, that the general power in CPR 3.10 is designed to address a situation which fits entirely with these circumstances. The court is not being asked to indulge a failure of the Claimant who has failed to adhere to strict time limits….nor to bypass other strict procedural requirements which are clear and unequivocal. It is being asked to correct a perceived procedural error in respect of the form, or the entity as it might be described of the served document. In this respect the qualifying words in the rule [meaning 3.10(a)]are important “which does not invalidate any step taken in the proceedings.” The purpose of service is to provide a defendant not only with all the necessary information about what is being claimed, but also an assurance that the claim has been properly issued within the jurisdiction, that service is being effected in time, and that the court has correctly processed the documentation, providing appropriate issue details. In every single respect this service purpose has been complied with: the only default is that in the possession of the Defendant there is a copy, rather than the original, which is precisely the same result which would have been achieved had the Claimant’s solicitor elected to fax the documentation…”

For those reasons HHJ Wood upheld the decision of the District Judge and found that the Court was exercising a CPR 3.10 discretion and “correcting an error of form and not substance” [76].

2 years later Mr Justice Morris was invited to determine almost precisely the same issue in the case of Wendy Evans. His Judgment, again unreported (citation [2017] EWHC 2731 (QB)). His judgment can be found here. HHJ Wood’s decision in Hart was cited to Mr Justice Morris. At paragraphs 35 -36 of the Evans judgment, Mr Justice Morris stated:

“Finally, whilst in this judgment, I have not set out in full the analysis of HH Judge Wood QC…in United Utilities, I find his reasoning compelling and agree with his conclusions in that case. His judgment has been of great assistance in the resolution of the case before me…For the above reasons, given CPR 3.10 the appropriately “wide” degree of effect to the presence case of service of originating process, I conclude that the Claimant’s error in serving a copy of the claim form was an “error of procedure” failing with CPR 3.10 and that, in the circumstances of this case, it is not appropriate for the court to order that that error should invalidate the step taking in the proceedings….To hold otherwise in this case would equally be “a triumph of form over substance.”

It is also noteworthy that in each of these cases (para 74 Hart, para 29 in Evans) each Judge pointed out that the Defendant had not pointed out the error to the Claimant’s when they could have done.

Two particular practice points arise:

i. Make sure you serve the original claim form and not a copy.

ii. If a mistake is made and a copy served instead the persuasive authorities cited above ought to be of assistance.