Claim for detailed assessment struck out over service failure

A costs judge has struck out a claim for detailed assessment after ruling that service was not properly effected because it was sent to the wrong address.

Master Rowley said the claimant’s solicitors failed to check the address and did not ask whether they could use electronic service.

In Kelly v Ralli Ltd [2022] EWHC B5 (Costs), Manchester firm Ralli acted for Mr Kelly on a personal injury claim which concluded in 2019, at which point the firm’s registered office in Sale was at Jackson House. In January 2021, it was changed to nearby Dalton House.

Mr Kelly instructed Leeds firm JG Solicitors to challenge Ralli’s fees and it wrote to Ralli in April 2021 at the Jackson House address and by email. The letter requested a final statute bill, which Ralli produced.

The following month, the part 8 claim for assessment was issued, with Ralli’s address stated as Jackson House. In July, the claimant emailed the defendant with a copy of the claim form as well as a letter which indicated that papers were being placed in the post for service. The letter was addressed to Jackson House.

JG then wrote to the court in the absence of any acknowledgement of service. Master Rowley noted: “There appears to have been no communication between the parties until a copy of the notice of the directions hearing was received by the defendant.”

Ged Courtney, a senior costs draftsman at Kain Knight, emailed JG on 30 September on behalf of Ralli to say that service had not taken place and set out the Dalton House address. JG attempted to serve an amended claim form on 5 October at the right address.

Mr Courtney then advised that the defendant could not accept service of the amended claim form given that the time for service had expired on 26 September.

Ralli issued an application notice regarding service of the claim form and sought an order to strike out the claim. The claimant sought an order, if necessary, for service of the claim form to be dispensed with.

Master Rowley said the Court of Appeal’s 2006 ruling in Kuenyehia dealt with the mechanism of requiring consent before electronic service.

He said the claimant “could have asked in any of the emails sent whether service by email could be used but that did not occur”.

“Either the claimant’s solicitors did not think it was necessary to do so, or, as seems more likely, did not intend the email version to be formal service. The fact that the defendant had a copy via email is not something which can assist the claimant any more than the defendant’s receipt of a fax in Kuenyehia.

“There is no evidence before me that the claimant’s solicitors ever checked the defendant’s address before commencing proceedings.”

The rules governing service were clear that the registered office or principal place of business – which were one and the same in this case – had to be used as the postal address for service upon a limited company.

The claimant complained about the two months Ralli took to highlight the address error, during which time the period for serving the claim form expired.

Master Rowley said: “I have no doubt that errors such as have occurred here are often dealt with on a practical basis by amendment in the manner attempted by the claimant’s solicitors.

“But there is nothing within the rules to require one party to assist the other and a practical solution does not alter the legal position. It is one which the defendant is entitled to uphold, should it wish to do so.”

He found for Ralli and struck out the claim.

Mr Courtney said: “This matter once again reinforces the importance of serving proceedings properly, whether that be part 7 or part 8. The claimant could have easily avoided his claim being struck out had he made simple checks prior to the issuing of proceedings.

“This decision stands as a further warning to those who feel that it is their opponent’s obligation to point out procedural errors in their case.”

Ian Simpson (instructed by JG Solicitors) for the claimant. Martyn Griffiths (instructed by Kain Knight (North & Midlands) Ltd) for the defendant.

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Costs News
Published date
23 Feb 2022

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