In Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors the Court of Appeal upheld a High Court decision that the claimant had not validly served proceedings by sending an unsealed amended claim form on the final day for service.
Procedural wrangles concerning defective service are all too common. The key lesson here is not to leave filing a claim form until the last day for issue or service. And, if doing so is unavoidable, take additional steps to get the claim form sealed on time.
The decision in Good Law Project v (1) Secretary of State for Health and Social Care and (2) Pharmaceuticals Direct Limited  EWHC 1782 (TCC) also emphasised the importance of serving a claim form correctly on time. In that case sending the claim form to the wrong email address (the claim form was sent to the solicitors, not the designated email address) did not constitute valid service.
The claimant in Ideal Shopping issued 16 claims against Visa and Mastercard alleging breaches of competition law. The parties agreed an extension of the period for service of the claims to 17 July 2020, in order to await the outcome in similar proceedings (Sainsbury's Supermarkets Ltd v Visa Europe Services LLC). The claimants sent sealed copies of the claim for information only in the meantime. Following the Sainsbury's judgment, the claimants amended and refiled the amended claim forms electronically under the Electronic Working Pilot Scheme, on the 17 July 2020.
Electronic filing is compulsory in the Rolls Building Courts, which includes the Business and Property Courts. A claim form filed under this scheme is only issued once accepted by the court, which may be the day after filing, or later. The majority of the amended claim forms in this case were not re-sealed until after the 17 July 2020, the final day for service under the agreed extension. The claimants also sent unsealed claim forms to the defendants.
The defendants applied for an order that the claimant had not served the claim forms by the last day of the agreed extension. The claimants sought relief under CPR 3.10, CPR 6.15 or CPR 6.16, or, alternatively, an order that they had validly served the claims, despite the procedural error. The judge held that the claim forms had not been not validly served.
The claimant appealed.
KEY LEGAL POINTS
The Court of Appeal upheld the decision of the High Court. The court noted that there were at least five things which the claimant could have done:
- File the amended claim forms earlier
- Seek a further agreed extension of time with the defendants
- Formally serve the original claim forms and then only serve the amended claim forms once sealed.
- Request the court that they expedite acceptance when filing
- Apply to the court for an extension of time.
The claimant had not taken any of the above steps and therefore the court's decision was to not indulge the claimant by granting a retrospective order validating the attempted service, and that CPR 3.10 should not be used to get around service requirements. The claimants also did not satisfy the requirements under CPR 6.15 or 6.16.