Are you being served? Clyde & Co wins cross-border service challenge

In the Preston County Court, Clyde & Co’s specialist cross-border team recently secured a significant win on the ever troublesome issue of service.

The background to this matter is one all personal injury and cross-border practitioners will be familiar with; however, the crucial take-home for all readers is a staunch reminder to not leave important matters, such as service of a Claim Form, to the very last moment. The English Courts have time and again shown their lack of sympathy to parties who chose to leave such a fundamental stage of litigation to the very last moment. It will come as no surprise to anyone that, in this matter, the Court was unwilling to retrospectively permit service by an alternative method, as prescribed by CPR r6.15.

Background

Clyde & Co was instructed in 2021 to represent Linea Directa Aseguradora S.A. (LDA) and its policyholder following a nasty motor incident on the M1. The incident itself involved multiple vehicles in a ‘concertina’ collision, with the claimant, represented by Sebastian Rowe Solicitors, alleging that LDA’s policyholder collided with the rear of his vehicle, shunting him into a collision with four other vehicles.

Clyde & Co denied liability on the grounds that LDA’s policyholder did not collide with the claimant’s vehicle and that the positioning of the claimant’s vehicle was wrong; it was towards the front of the concertina and more likely than not, caused the collisions in the first place. Following a robust denial of liability, and during the course of further communications with Sebastian Rowe, Clyde & Co confirmed that it was not instructed to accept service of a Claim Form within the jurisdiction (ie England and Wales), the obvious implication for cross-border practitioners being that the claimant would need to serve the Claim Form on LDA, in Spain.

Prior to the receipt of a sealed Claim Form, Clyde & Co last heard from Sebastian Rowe in April 2022. On 14 August 2024, a sealed Claim Form, particulars of claim and accompanying evidence were hand-delivered to Clyde & Co’s offices. These proceedings, detailing a claim valued up to £40,000 comprising personal injury and vehicle damage, would have been deemed served on 16 August 2024 in accordance with r7.5 (1). However, Clyde & Co, whilst acting for/representing LDA, had never been instructed nor nominated to accept service of a Claim Form within the jurisdiction, within the meaning of either CPR rr6.7 (1) or (2). The claimant, or rather his solicitor, ought to have sought permission to serve the Claim Form out of the jurisdiction and served on LDA in Spain. No such permission was sought and the claimant’s solicitor proceeded to serve the Claim Form on Clyde & Co.

It has long been established, but more recently affirmed in Woodward v Phoenix Healthcare Distribution Limited [2019] EWCA Civ 985, that a party is not required to notify another of a mistake. Despite having no obligation to do so, Clyde & Co notified Sebastian Rowe the very same day proceedings were delivered that it was not instructed to accept service of the Claim Form. Sebastian Rowe maintained that Clyde & Co was so nominated and/or instructed, but failed to produce any evidence to support this.

Following the expiry of the Claim Form, and with no evidence that the claimant’s solicitors were going to rectify the mistake, either by seeking permission to serve out of the jurisdiction and/or by seeking an extension of time to do so, Clyde & Co duly filed and lodged an application seeking a declaration from the Court that, given the Claim Form had expired unserved, it had no jurisdiction to hear the claim.

Following the application being made in late-August 2024, the Civil National Business Centre (CNBC) took a very long time to transfer the case to be heard at the claimant’s local court in Preston. From the application being made, it took just under eight months for the case to be heard; until the week prior to the application being heard, and despite having a copy of the application served on them in good time, Sebastian Rowe did nothing. There was no cross-application or evidence lodged, until just over a week before the hearing on 16 April 2025.

The evidence served was a witness statement from a Partner at Sebastian Rowe, maintaining that Clyde & Co was indeed the nominated solicitor and that the Claim Form had been correctly served. The Partner in question, whilst referring to case law and rules that had no bearing on the issues at play, namely the service of a Claim Form, could not produce any evidence to show that Clyde & Co was instructed to accept service. The evidence was overwhelmingly in favour of Clyde & Co having not been instructed to accept service.

Counsel for LDA, Francesca O’Neil of Deka Chambers, produced a devastating skeleton argument which was served on Sebastian Rowe shortly before the hearing. On the morning of the hearing, Sebastian Rowe served a skeleton argument from their instructed counsel which attempted to file an application under CPR r6.15 on the day of the hearing, without any evidence.

The relevant sections of r6.15 are as follows:

“(1) 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 this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, 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.

(3) An application for an order under this rule –

(a)    must be supported by evidence; and
(b)    may be made without notice.”

Sebastian Rowe, appearing to seemingly abandon their previous position, most likely on the advice of Counsel, after almost eight months of inaction, attempted to make an application, unsupported by evidence, under r6.15 in the face of the Court. It should shock no one that the Court did not entertain the application.

The hearing

DDJ Wasif Ikram, sitting in the Preston County Court and finding for LDA in full, issued a declaration that the Court had no jurisdiction to hear the claimant’s claim on the grounds it had expired unserved. Due to the time it took for the application hearing to be listed, Sebastian Rowe had more than enough time to seek an extension of the life of the Claim Form and/or seek permission to serve the Claim Form out of the jurisdiction, however it appears that the Court took a dim view of their conduct.

Dealing with the application in the face of the Court under r6.15, DDJ Ikram said:

"Should I entertain C’s application under 6.15? I’ve summarised the background. I will repeat: RTA 26th March 2021. Issued outside of limitation. Then attempted to serve on 14th August 2024 on the cusp of expiry. It was conceded at 11.25 this morning that C’s sols got it wrong. I remind myself we are now 7.5 months down the line. Set out clearly in D’s WS why service was invalid. There has been ample time to prepare an appropriate application and issue it. Even as an application in the alternative, in case the court wasn’t with them on proper service. C’s WS 7th April 2025, opposing D’s app, 6.15 is not even raised. The first time it was raised was this morning. I make no criticism of Counsel, but sols for the C could have made that application 7.5 months ago. No evidence in support of any application. In my view C’s representative have left a crucial step to the last moment, in which case they must ensure that they get it right. C accepts that it would require an order under CPR 6.15, but that application was never made. Should court now consider it? I consider CPR 1.1 – with no explanation from C explaining why no such application has been made I consider it would not be just to hear it today. D’s skeleton argument seems to have prompted it but there is no good reason to hear it today. The result of that is an order arising from D’s application which has been successful."

Due to the situation LDA found itself in, and the conduct of the claimant’s solicitors, Clyde & Co sought an order providing that Sebastian Rowe shows cause as to why it should not pay LDA’s costs of the entire action. Fortunately, the Court was with us on this point, with DDJ Ikram saying "I can see that there is a basis for that application in terms of C's solicitors acting unreasonably and negligently.”

Key takeaways

In our specialist cross-border team, we see issues in relation to service arise on a daily basis. This is a stark reminder to practitioners that the Court does not take kindly to mistakes and issues with, arguably, the most important step in the litigation process. Similarly, inaction of any party when faced with a serious and fatal issue to a claim will also be treated with contempt; it is incumbent upon parties to their utmost to resolve issues such as these. Had such action been taken in the seven and a half months from the application to the hearing, the outcome most certainly would have been completely different. This result was possible by having a specialist cross-border team who has a clearly defined strategy for handling these claims from the onset.

Clyde & Co are specialists in dealing with cross-border and international claims, and we constantly monitor developments around this topic. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Thomas Byrne or any of our Cross-Border team.