Sensible service: Courts take a pragmatic approach to service of proceedings during lockdown

Two recent High Court judgments provide important lessons on the approach the courts will take to the service of documents in the current situation. Even as lockdown eases for most, these lessons will continue to be important, particularly in a world where further local lockdowns, such as the one imposed in Leicester, remain likely.

The courts generally require parties to adhere strictly to the requirements and deadlines for service set out in the Civil Procedure Rules. However, parties should not assume that judges will enforce these rules rigidly if doing so would lead to an unjust outcome.

Taking advantage of COVID-19 would be “unconscionable”

The claimant in Stanley v Tower Hamlets was seeking damages from a local authority for psychological distress and other losses caused by a data protection breach. During a telephone conversation in February 2020, the local authority’s legal department told Ms Stanley’s solicitor that service of proceedings should be effected by post.

On 25 March 2020 – two days after the UK Government ordered a country-wide lockdown due to COVID-19 – Ms Stanley’s solicitor served the claim form by posting it to the local authority’s office. Its office had by then been closed, with all staff working from home. When the local authority failed to file an acknowledgment of service by the relevant deadline, Ms Stanley’s solicitor applied for and obtained judgment in default.

The local authority applied to set aside the default judgment. The Civil Procedure Rules allow a default judgment to be set aside if: (i) the defendant has a real prospect of successfully defending the claim, or (ii) there is “some other good reason” to set it aside.

The judge’s view was that it was “not good enough” for Ms Stanley’s solicitor to rely on what he had been told regarding service back in February 2020. The world had “shifted on its axis” on 23 March 2020 and it was consequently incumbent on him as a “responsible solicitor” and officer of the court to contact the defendant and discuss how proceedings could best be served in light of the unfolding pandemic. Although Ms Stanley’s solicitor had not unscrupulously taken advantage of the situation, it was found that he had exercised poor judgment in posting papers to offices which he knew (or should have known) were closed.

The judge concluded that it would have been “unconscionable” for Ms Stanley to benefit from the “unprecedented health emergency which prevailed at the end of March (and which is still subsisting today).”

The judgment makes it clear that strict adherence to the rules on service will not always be enough. A default judgment is vulnerable to being set aside (with the resulting costs consequences) if claimants do not act reasonably or seek to take advantage of circumstances outside either party’s control.

COVID-19 pandemic was a good reason for failing to serve a claim form abroad

In Serious Fraud Office v Karimova, the court granted a six-month extension of time for the claimant to serve a claim form on defendants in Uzbekistan because service had been hampered by the pandemic.

Although the claimant had made efforts to effect service, the COVID-19 restrictions in the UK and Uzbekistan had caused significant difficulties. By extending the period for service of the claim form, the court ensured that the claimant was not unfairly prejudiced by disruption caused by COVID-19 and that further efforts could be made to serve proceedings on the defendants.

Comment

The lesson from these cases is that the courts will generally adopt a pragmatic approach where parties have behaved reasonably but will not be impressed if parties try to take advantage of the very real practical difficulties which the pandemic has created.

Parties should clearly always do their best to comply with the requirements set out in the Civil Procedure Rules. However, they should also act sensibly and use common sense. Claimants should be pro-active by: (i) checking with prospective defendants how best to effect service (remembering that a defendant will need to consent to service by email); and (ii) where appropriate, taking steps after effecting service to ascertain whether the documents had been received.

If you require further information about anything covered in this briefing, please contact Ben Longworth, Lucy Penn, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2020