RETROSPECTIVELY VALIDATING STEPS TAKEN BY A CLAIMANT AS GOOD ALTERNATIVE SERVICE UNDER CPR 6.15(2) – IF A COURT FINDS THAT THERE IS A SINGLE GOOD REASON TO DO SO, THERE IS NO FURTHER DISCRETION NOT TO DEEM THE SERVICE GOOD

profile_PI_Bronia_Hartley1 By Bronia Hartley

Sheikh Abedlelah M Kaki v (1) National Private Air Transport Co (2) National Air Service Ltd (2015) CA (Civ Div) 13/05/15

CPR r.6.15(1) provides that where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by Part 6, the court may make an order permitting service by an alternative method or at an alternative place.

Rule 6.15(2) provides that on an application under r.6.15, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

An application for an order under r.6.15(1) may be made either before or after the claimant has attempted service by a method permitted by Part 6.

In Abela v Baardarani [2013] UKSC 44, in the context of service out of the jurisdiction, the Supreme Court interpreted a method of service “not otherwise permitted by this Part” as being done in cases (and only in cases) where none of the methods provided in r.6.40(3) had been adopted. By analogy, in relation to service in the jurisdiction, it occurs where none of the methods set out in, for example, rr.6.3, 6.11, 6.12 and 6.13 had been adopted.

The question in these cases will be whether in an individual case there is good reason to declare that the method used, being not a permitted method, is to be treated as good service.

“Good reason to authorise”

It was held by the Supreme Court in Abela v Baardarani: (1) That whether there is a good reason to treat a method of service not permitted by Part 6 as good service under r.6.15(1) and (2) is essentially a matter of fact; (2) the contrast with r.6.16 under which the court can only dispense with service of the claim form “in exceptional circumstances” shows that it is not the case that under r.6.15 there will only be good reason in exceptional circumstances; (3) it should not be necessary for the court to spend undue time analysing decisions in previous cases which depended on their own facts; (4) the mere fact that the defendant has learned, by the method used, of the existence and content of the claim form cannot without more constitute a good reason to make an order under r.6.15(2), but the wording of the rule shows that it is a critical factor.

In the recent case of Sheikh Abedlelah M Kaki v (1) National Private Air Transport Co (2) National Air Service Ltd (2015) CA (Civ Div) 13/05/15, further clarification was given as to the approach to be taken by the court when determining whether retrospectively to validate steps taken by a claimant as good alternative service under CPR r.6.15(2). The court held:

1)      CPR r.6.15(1) referred to the requirement for there to be “a good reason”. The use of “a” meant one good reason only was sufficient. If the court found one good reason, then there was no further discretion not to order alternative service.

2)      It was clear from CPR r.6.15(4) that an application could be made at any time, before or after the service time limit had expired. In deciding whether there was a good reason to retrospectively validate steps taken as good service, the judge needed to consider all relevant factors, including issues of timing and the parties’ conduct, however there was no requirement for the court to adopt any more rigorous an approach after the time limit for service had expired; that was just another factor to consider.

It is of note that in this case, not all reasonable steps had been taken to serve the claim form within the period of its validity, however the claimant had made significant efforts over a prolonged period and the claim form had been brought to the defendant’s attention. On that basis, the court found that there was good reason retrospectively to validate the steps that had been taken as good service.

 

 

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2 comments

  1. […] Bronia Hartley took us through the procedure for retrospectively validating steps taken by a claimant in Retrospectively validating steps taken by a claimant as good alternative service under CPR 6.15(2) … […]

  2. […] Hartley took us through the procedure for retrospectively validating steps taken by a claimant in Retrospectively validating steps taken by a claimant as good alternative service under CPR 6.15(2) … (June […]

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