Insurance & Reinsurance
This content was written by BLM prior to its merger with Clyde & Co.
BLM Solicitor Kirtana Davda analyses a recent judgment which explores the risks of a defective claim form and how an administrative error could lead to a dispute before the court.
BLM was instructed on behalf of the Second Defendant (Paul Speak Manufacturing Company) and the Third Defendant (WJWL Realisations Ltd) in respect of a Noise Induced Hearing Loss claim brought by Ms Coelho.
This matter concerned the Second and Third Defendant’s applications to dispute jurisdiction on the ground of defective service of the claim form. The dispute arose due to a discrepancy between the date stamped on the claim form and the date recorded on the notice of issue as the issue date.
The issue date on the claim form was stamped as 25 June 2020 whereas the notice of issue suggested that the claim was issued on 30 June 2020. The date on the letter accompanying the claim form and the particulars of claim when served on the Second and Third Defendants was 27 October 2020. It was agreed that if the claim form was issued on 25 June 2020 then in order for service to be valid, the claimant must have served the claim form before midnight on the calendar day four months after the date of issue of the claim form i.e. by 25 October 2020.
The Second and Third Defendants each filed an Acknowledgment of Service contesting jurisdiction and subsequently filed applications within the time specified.
The defendants argued that the claim form is the originating process for a claim, not a notice of issue: under PD7A paragraph 5.1, proceedings are started when the court issues a claim form at the request of a claimant.
In this case, the sealed claim form, bearing a date and claim number, was in existence for five days before a notice of issue was generated. It cannot be said that, if in these five days the sealed claim form, bearing its date and claim number, was served on a defendant, the claim was not issued and did not yet exist because the document contains all the prerequisites for valid service.
When the court is faced with two documents that appear to contradict each other in terms of what they indicate the date of issue to be, the court must look to the Civil Procedure Rules for guidance as to the definition and location of the date of issue. That is clearly written in plain r7.2, which states that a claim form is issued on the date entered on the form by the court.
The application hearing was before District Judge Hickinbottom sitting at the County Court at Bradford on 24 February 2021.
The defendants’ applications were allowed. A declaration was made that the claim was not served in time and that the court had no jurisdiction to try the claims. The court ordered the claimant to pay the defendants’ costs (QOCS protected) and also made a show cause order as to why the claimant’s solicitors should not pay the defendant’s costs.
The Judge held that “Hence the material date, the date for issue, is when the court takes practical steps to issue the proceedings rather than the date of receipt… The Defendants say the material date for issue is the date on the claim form. That must be right.”
The case was particularly interesting as the First Defendant had filed an Acknowledgment of Service intending to defend the claim but then proceeded to file an application to contest jurisdiction. They later withdrew their application prior to the hearing. The First Defendant, by virtue of their Acknowledgment of Service is deemed to have accepted the court’s jurisdiction to try the claim. As such, the claim still proceeds against the First Defendant.
It is unusual for such a set of circumstances to arise however one must ensure that there is a valid stamped claim form that has been served in time. If there is any doubt, then an Acknowledgment of Service should be filed contesting jurisdiction and an application made within 14 days.
The outcome of this matter is significant as proceeding with the line of argument that the date of issue on the claim form is the correct one has meant that the defendants were successful in their application, thereby saving substantial amount of costs to the client.