Claim form served late but dismissal application rejected

The High Court has dismissed a defendant firm’s attempt to have a claim thrown out after a key form was served late. Mr Justice Andrew Baker said London firm Rosling King, representing a broker in an insurance dispute, had served the claim form after the required deadline in June last year.

But he rejected the submission from defendant firm Clyde & Co that the claim should therefore be dismissed, saying there had been no problems caused to the proceedings.

Clyde & Co had given Rosling King notice under Civil Procedure Rule 7.7 on 27 May requiring the claimant to serve or discontinue within 14 days. Failure to serve on or before 10 June would therefore entitle Clyde & Co to apply for the dismissal of the claim.

The court heard Rosling King did nothing towards serving the claim form until the afternoon of 10 June, when a trainee solicitor presented herself at the ground-floor reception desk of the central London building where Clyde & Co occupies the 10^th-13^th floors.

The trainee did not gain access to Clyde & Co upstairs and left the service package with a contractor who signed for it, purportedly on behalf of the defendant firm.

In Brightside Group Ltd & Ors v RSM UK Audit Ltd & Anor, lawyers for the defendant argued Rosling King had failed to comply with the order because the claim form was not delivered to its offices within the deadline allowed.

They said the claimants had waited until the last minute for no good reason and as a result had served ‘out of time’.

Rosling King said its trainee had effectively left the claim form at the relevant place on the date agreed, which was sufficient to comply with CPR requirements.

The judge agreed the claimants had delivered the form to the relevant place on 10 June, but that did not mean it had been served on time. The date of service, he said, was in fact 14 June.

But Baker went on to say that CPR 7.7 is there merely to ‘make clear that non-compliance is to carry with it a power to dismiss in an appropriate case (and not only lesser, procedural, sanctions)’.

He explained this was not a case for dismissal as the claimants' solicitors in good faith thought that completing the ‘step required’ element of the form would comply with the notice.

‘The failure to comply strictly with the deadline set by the CPR 7.7 notice meant at most only that the defendants received that confirmation, and those details, one or two working days later than they might otherwise have done,’ added the judge. ‘That has not caused and will not cause them any prejudice or difficulty whatever.’

While the claimants had failed to comply with the CPR 7.7 notice served by the defendants, Baker rejected the application for a dismissal of the claim and instead set out a timetable for service of a defence and reply.

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Claim form served late but dismissal application rejected