In Michael Norcross v Chrislos Georgallides [2014] EWHC 4530 (Comm), 4 July 2014, the Commercial Court clarified the test that will be applied by a court when determining whether to grant retrospective alternative service of a claim form under CPR 6.15(2). This judgment emphasises that the key question for a court to ask when considering whether to grant such an order is whether there is a good reason for treating the delivery of the claim form by an alternative method or to an alternative place as good service.

CPR 6.15(2): Order for retrospective alternative service

Under CPR 6.15(2) a court may order that "steps already taken to bring the claim form to the attention of the defendant" by an alternative method or at an alternative place constitutes good service. In Abela & ors v Baadarani [2013] UKSC 44, the Supreme Court held that when deciding whether to grant an order under CPR 6.15(2), a court "should simply ask itself whether in all the circumstances of the particular case there is a good reason to make the order sought" given that the purpose of serving proceedings is to bring the proceedings to the attention of the defendant.

Facts

The claimant had served the claim form at an address that it believed, in good faith, was the defendant's address for service. However, this turned out not to be the case. The defendant nonetheless became aware of the proceedings and successfully applied to set aside service of the claim form.
The claimant applied to the court for an order for retrospective alternative service under CPR 6.15(2).

Order for retrospective alternative service granted

The court made an order for retrospective alternative service under CPR 6.15(2). Although the claim form had been served at the wrong address, the Commercial Court took into account the fact that:

• it had come to the attention of the defendant and its advisers that the claimant had attempted to serve a claim form on it well before the time limit for service had expired; and
• the proceedings were not time-barred when the claimant made its application for an order for retrospective alternative service.

As a result, the Commercial Court concluded that granting the order would not cause any prejudice to the defendant.

In coming to its decision, the Commercial Court applied the reasoning set out in Abela (see above) where it was held by the Supreme Court that the defendant's awareness of the proceedings was a critical (but not decisive) factor in determining whether to grant an order for retrospective alternative service. In addition, in this case the Commercial Court held that the claimant had acted in good faith in serving the claim form (as it reasonably believed (albeit mistakenly) that it had served the claim form on the defendant's address for service) and that it would not be in the overall interests of justice to require the claimant to institute fresh proceedings.

What if an application for an order for retrospective alternative service is made out of time?

The Court of Appeal has recently granted permission to appeal in a separate case, Kaki v National Private Air Transport Co & anr [2014] EWHC 1947 (Comm), which also concerns the availability of an order for retrospective alternative service under CPR 6.15(2). In this case, the claimant had applied to the court for an order for retrospective alternative service nine months after the deadline for service of the claim form had expired.

The Court of Appeal gave permission for the defendant to appeal an order for retrospective alternative service that had been granted at first instance. In particular, Briggs LJ was persuaded that the test applied in Abela could be distinguished given that the claimant in this case had applied for an order for retrospective alternative service after the time limit for service had expired.

In addition, the defendant argued that it would be prejudiced if an order for retrospective alternative service was granted as it would appear to validate an otherwise easily challengeable order for summary judgment which the claimant had obtained in the meantime. In granting permission to appeal, Briggs J stated that it would be helpful for the Court of Appeal to consider whether the consequences of an order for retrospective alternative service are effective on the date that the order is made, or the date when the relevant steps were taken by the claimant to try and effect service of the claim form.

Comment:

The Commercial Court's decision in Norcross emphasises that the key question for a court to ask when considering whether to grant an order for retrospective alternative service under CPR 6.15(2) is whether there is a good reason for treating the delivery of the claim by an alternative method, or to an alternative place, as good service. In this case, the Commercial Court's decision appears to have turned on the fact that the claimant took reasonable steps in good faith to bring the claim form to the attention of the defendant and that the claimant made its application for an order under CPR 6.15(2) before the time limit for service of the claim form had expired.

However, the permission to appeal that has been granted in Kaki raises an interesting question as to the impact that applying for an order under CPR 6.15(2) after the time limit for service of the claim for had expired will have on a court's willingness to grant such an order. In addition, the comments made by Briggs LJ also mean that it is likely that the Court of Appeal will opine on when the consequences of an order for retrospective alternative service take effect.