Dunbar Assets v BCP Premier Ltd (2015)
There had been no good reason for ordering that a claimant's emailing a copy of a claim form to the defendant should be permitted as good service.
The appellant (B) appealed against a deputy master's order that the emailing to it of a claim form by the respondent (D) should be permitted as good service.
D was seeking £300,000 in damages from B. The court made a consent order which provided that D would serve its claim form on B by a given date. On that date, D emailed a copy of the form to B. B maintained that the email did not comply with the consent order and that D was therefore out of time for serving its claim form. D applied to the court, and the deputy master held that D's email should be permitted as good service pursuant to CPR r.6.15.
It was evident from the language of r.6.15 that an application for an order permitting service by an alternative method or place would only succeed if it appeared to the court that there was a good reason to authorise such alternative service and the court decided to exercise its discretion in favour of permitting it. In the instant case, D had provided no explanation for not serving the claim form properly in accordance with the CPR. D had agreed that it would do so, had consented to an order requiring it to do so and there had been plenty of opportunity for doing so. The deputy master had also referred to absence of prejudice to B, a matter which he accepted was not enough on its own. However, there was arguably enormous prejudice to B if the order was made, because it would render a limitation defence unavailable, Kuenyehia v International Hospitals Group Ltd  EWCA Civ 21,  C.P. Rep. 34 applied. Accordingly, the deputy master had been wrong to conclude that on the facts of the case there was a good reason to make an order under r.6.15. The court would not exercise its discretion in favour of granting the order as D had not explained why the claim form was not served properly in accordance with the CPR and it would prejudice B by denying it a limitation defence (see paras 26, 32, 36-37, 44-47 of judgment).
LTL 19/1/2015 :  EWHC 10 (Ch)