The Court of Appeal has backed a High Court decision that service of unsealed amended claim forms cannot constitute good service.
In Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors judges upheld a finding that because the documents served in 2020 were not sealed, they were not deemed to be claim forms, and so effectively no claim form was served within the time permitted.
Solicitors for the claimants appealed on the basis that the initial decision was inconsistent with the provisions of PD510 and gave rise to unacceptable levels of uncertainty for parties using electronic working. It was also submitted that the court had discretion within rule 3.10 of the Civil Procedure Rules to grant relief where there had been an error of procedure that did not otherwise invalidate proceedings.
The underlying cases were 16 claims for breaches of competition law alleged to have been committed by Visa and Mastercard.
Amended forms were sent by 4.32pm on the deadline day, but solicitors for Visa and Mastercard took the point that the sending of the unsealed amended claim forms did not constitute good service. Sealed forms were served within nine days of the deadline.
Giving the lead judgment, Sir Julian Flaux said the claimants and their solicitors could have avoided problems by sending the amended claims forms earlier than the last day of permitted service, seeking an extension of time, serving the original claim forms then the amended forms once they had been sealed, and asking court staff to expedite acceptance.
The judge said the problem faced by the claimants was not caused by any issue with electronic filing but ‘by their failure to take one or other of those courses and by their solicitors’ mistaken belief that service of an unsealed amended claim form would be good service’.
He said the general rule was that a claim form must be sealed before it can be validly served, and any abrogation would need to be ‘expressly stated’ in the practice directions.
On the scope of rule 3.10, the judge said the court was being asked to override a specific provision without good reason being shown, and this caveat could not be relied on to ‘bypass’ the requirements of service. ‘Even if relief under rule 3.10 were available in principle, which I have held it was not, I would not exercise the discretion to grant relief in favour of the appellants,’ he added.
The appeal was dismissed, a decision agreed with by Lady Justice Elisabeth Laing and Lord Justice Birss.