Home Information Cases Bethell Construction Ltd & Bethell Group Plc v Deloitte & Touche (2011)

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Bethell Construction Ltd & Bethell Group Plc v Deloitte & Touche (2011)

Summary

The defendant in a professional negligence action had not accepted that the claim form had been duly served or waived its entitlement to require its proper service. There were no exceptional circumstances sufficient to justify dispensing with service altogether under CPR r.6.16.

Facts

The appellant (B) appealed against a decision ((2010) EWHC 3664 (Ch)) that its claim form had not been validly served on the respondent (D) within time and that service of the claim form should not be dispensed with. In February 2007, B had issued a protective claim form seeking damages for professional negligence against D. The claim form had been sent to D, but not expressly by way of service. In March 2007, an extension of time for service of the claim form and particulars of claim was agreed, terminable by either party upon 14 days' written notice. There were a number of agreements for extensions of time for the service of the claim form and particulars of claim. The final one, with which the instant appeal was concerned, was concluded in an exchange of emails between the parties' solicitors on June 18, 2007. On October 14, 2010, B sent a letter to D, enclosing by way of service the particulars of claim, but without the claim form. On October 22, 2010, D wrote to B giving the requisite 14 days' formal notice of determination of the March 2007 "stay agreement". When the claim form was not served by the expiry of the 14 days, D asserted that the claims were time barred. The issues were whether (i) B's letter of October 14 constituted "constructive" service of the claim form sent to and possessed by D since March 2007 "not by way of service"; (ii) D's letter of October 22 was effective to terminate the extension of time agreed by the emails in June 2007; (iii) D waived its entitlement to proper service of the claim form and was estopped from insisting on it; (iv) an order under CPR r.6.15 deeming due service of the claim form should have been made; (v) the judge was wrong not to dispense with service of the claim form under CPR r.6.16.

Held

(1) The first issue involved the proposition that a claimant may unilaterally determine on a method of service of the claim form not authorised by the rules. The short answer was that he was not so entitled. The rules were there to be complied with. They were capable of amendment in accordance with the Civil Procedure Act 1997 but not by the unilateral act of the claimant (see para.9 of judgment). (2) The October 22 letter was effective to terminate the extension of time agreed by the emails in June 2007 (para.11). (3) The letter of October 22 did not constitute a positive representation that D accepted that the claim form had been duly served or waived its entitlement to require its proper service, Stolt Loyalty, The (1993) 2 Lloyd's Rep 281 QBD (Admlty) considered (para.22). (4) There was no reason why the court should exercise any discretion it might have so as to deny D its accrued right (para.25). (5) If the facts did not reveal a good reason to make the order regarding service of the claim form sought under CPR r.6.15 they could not possibly disclose exceptional circumstances sufficient to justify dispensing with service altogether under CPR r.6.16. Nor could they provide any sufficient reason to make the order sought. Also B had entirely failed to show any ground on which the court could interfere with the discretion of the judge (para.28).

Appeal dismissed

Court of Appeal
Sir Andrew Morritt (Chancellor), Hooper LJ, Rafferty LJ
Judgment date
18 November 2011
References

​LTL 18/11/2011 : [2011] EWCA Civ 1321