High Court gives valuable lesson on valid service

08 July 2021

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In the recent case of R (Good Law Project) v Secretary of State for Health and Social Care [2021] EWHC 1782 (TCC) the High Court provided a salutary lesson on the valid service of claim forms in the context of judicial review proceedings. In reaching its judgment the English High Court refused to exercise its own discretionary powers and dismissed the Claimant’s applications. Whilst the English Civil Procedure Rules (“CPR”) were relevant to this case the outcome will serve as an influential precedent here.

Background

On 4 July 2020, the Defendant entered into a contract with Pharmaceuticals Direct Limited for the supply of PPE with a value of £102.6 million. Following this, the Claimant sought to challenge the award of the contract by way of judicial review.

The Claimant sent a pre-action letter to the Government Legal Department (“GLD”) to initiate proceedings. In their response, the GLD specified new proceedings were to be served on the Treasury Solicitor. Subsequently, an unsealed claim form was sent to the Treasury Solicitor by email.

On 27 April 2021, the Claimant filed a claim in the Administrative Court, challenging the lawfulness of the contract. The grounds of challenge were identified as:

  1. a breach of the duties of equal treatment and transparency contrary to the Public Contract Regulations 2015;
  2. a breach of the common law duty to act without apparent bias.

The following day the Administrative Court issued a sealed claim form, which the Claimant forwarded by email to all parties except the Treasury Solicitor. As a result, the validity of service was disputed and the Defendant applied for an order that the claim be set aside by reason of late service. Whereas, the Claimant applied for an order under the CPR that late service should still be valid and asked the court to determine that the steps taken by the Claimant constituted good service.

Decision

Under the CPR, the court holds power to rectify errors of procedure if “the error does not invalidate any step taken in proceedings". Despite the Claimant’s argument that there was irregular but otherwise valid service Justice O'Farrell rejected this submission. Justice O’Farrell held that the Claimant could not rely on this ground as their error in sending the unsealed claim form could not constitute a ‘step in proceedings’ as proceedings had not begun when the claim form was sent.

Similarly, the court was tasked with ascertaining if the steps taken by the Claimant constituted good service. Justice O'Farrell considered the judgment of Barton v Wright Hassall LLP [2018] UKSC 12 and ruled that the court had no reason to find that the steps taken by the Claimant constituted good service. The Claimant’s failure to serve the sealed claim form by the specified method within the stipulated period, meant that an order could not be made by the court. The Defendant’s application to set aside the claim form was successful.

The ruling serves as a stark warning to practitioners as something as simple as omitting an email address, which may be regarded as a careless mistake will not be looked on lightly in judicial review proceedings. On the other hand, the judgment itself serves as a salutary lesson on the courts consideration in determining valid service.

If you would like any further information or advice, please do not hesitate to get in touch with our Litigation and Dispute Resolution team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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