Kuenyehia and others v International Hospitals Group Ltd

Claim form — Service by fax — Time limit — Service by electronic means without consent of appellant — Court having power to dispense with service — Whether failure to obtain consent minor departure from Civil Procedure Rules — Whether respondents’ service of claim permitted method ineffective — Appeal allowed The respondents wished to bring an action against the appellant. On the last day for serving the claim under CPR 7.5(2), the respondents’ solicitor telephoned the appellant’s solicitor to ask whether it had been instructed to accept service. It received no reply. The respondents’ solicitor therefore sent a copy of the claim to the appellant’s solicitor by courier and faxed a copy to the appellant’s legal department at the fax number that was recorded on the appellant’s previous correspondence. The appellant contended that the claim form had not been properly served, rendering the proceedings ineffective. The respondents sought an order that the service of the claim had been validly effected. A master ruled that, although the claim form had not been served in accordance with CPR 6, he would dispense with service under CPR 6.9. Considering the matter afresh, the High Court upheld that decision on the basis that the failure to obtain the appellant’s advance written consent to service of the claim form by fax, as required by the practice direction to CPR 6, was a minor departure from the requirements of CPR 6.2(1). The appellant appealed. However, the respondents argued that even if the failure to obtain consent did amount to a minor departure from a method of service permitted by CPR 6.2, the claim had been effectively served by one of the permitted methods within the time limit and the appellant had suffered no prejudice. Held: The appeal was allowed. The order dispensing with service of the claim form would be set aside because service by fax was precluded unless the written consent of the recipient had been obtained. Service by fax, without such consent, was not “service by one of the methods allowed” by CPR 6.2, nor could it be characterised as being no more than a “minor departure” from CPR 6.2(e). Furthermore, the absence of prejudice did not justify dispensing with service. The time limits set out in the CPR had to be strictly observed. Only in an exceptional case would the court exercise its power to dispense with service of a claim form under CPR 6.9 where the time limit for service had expired before service was effected within Part 6. Service by fax was not permitted, whereas service by second class post would have involved a permitted method, but involving a departure from the stipulated machinery. Moreover, the facts that the appellant had received the faxed copy within the time limit, that the respondents’ solicitor had previously communicated with the appellant on the fax number and that the its legal department was contactable on that number did not make the failure to comply with the Practice Direction a minor departure from CPR 6.2(e). The court should not accord relief where there was nothing exceptional about the facts such as those in this case, where the respondents’ solicitor had waited until the last effective day of service and, in spite of the fact that it knew the appellant’s address, had failed to effect service with a method permitted by CPR 6.2: Vinos v Marks & Spencer plc [2001] 3 All ER 284; Godwin v Swindon Borough Council [2001] EWCA Civ 1478; [2001] 1 WLR 997; Anderton v Clwyd County Council [2002] EWCA Civ 933; [2002] 3 All ER 813; Wilkey v BBC [2002] EWCA Civ 1561; [2003] 1 WLR 1 and Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656; [2003] 1 WLR 2441; [2003] 21 EG 191 (CS) applied. Richard Coleman (instructed by the Stephenson Harwood) appeared for the appellant; Peter Birts QC and Mark Hill (instructed by Humphrey Williams) appeared for the respondents. Eileen O’Grady, barrister